Tag: constitutionality

Lost Constitution Webinar

Veritas para justitia

May 22, 2020 11:00 AM PDT

This FREE webinar dares discuss the CAI taboos!

The overall intent and purpose of this webinar series is the education and reorientation of HOA members, especially the board of directors, to long ignored issues of constitutional validity; issues that the public will not find in the multitude of materials and publications of that business trade group, Community Associations Institute, CAI.

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The reorientation project is the first step toward the understanding and acceptance of my Plan Toward the Restructuring the HOA Model of Governance; it requires an examination of the role and influence of CAI in supporting and promoting the HOA legal concept and model of government.

To participate you will receive an invite with a password giving the time and date of the session. You will need this info when you sign up for the session at webinar time.

To receive an invitation please respond to gks256@NYU.edu with “webinar” as the subject and the email address that you will use to participate

BOD education webinar on HOA realities in final stages

A FREE StarMan Group webinar series to educate and reorient HOA boards and the public in general is in its final stages of development. This HOA educational series is based on the collection, “Restoring the Lost Constitution to HOA-Land.” See “HOA board education in constitutionality.”

The first session makes the case why HOA boards need to be educated as they are functioning in the blind with respect to constitutionality issues and the denial of member rights and freedoms. The final session will address The Plan to Restructure the Model of HOA Governance.

To participate you will receive an invite with a password giving the time and date of a ZOOM session. You will need this info at webinar time when you sign up for the session.

Coming soon . . .

Reorienting the HOA board – fair elections

Mentoring: Reorienting the HOA board – fair elections

I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.

In Dublirer the NJ Supreme Court held,

Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. . . . [Dublirer’s] message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.[1]

In California the appellate court held,

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”[2]

Democracy Web[3] clarifies the importance of fair elections in a democracy.[4]

If consent of the governed is the most fundamental concept of democracy, its most essential right is that of citizens to choose their leaders in free, fair, and regular elections. Other rights are necessary to democracy; elections by themselves are insufficient. Yet the right to freely elect one’s representatives and to influence the political direction of one’s government is democracy’s indispensable political foundation.

Without free elections, there is neither the possibility for citizens to express their will nor the opportunity for citizens to change their leaders, approve policies for the country, address wrongs, or protest the limitation of their rights. Elections establish the citizenry’s and the individual’s political rights. They are the ongoing representation of the consent of the governed

As it stands HOAs cannot be described as a democracy, or a democratic business as CAI’s Tom Skiba(CEO) alleged,[5] so long as the current fair elections doctrine remains in place.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

In an unbelievable doubletalk and excellent example of the pot calling the kettle black and Orwell’s DoubleSpeak, Skiba asserts,[6]

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

In addition, while the appellate court upheld California’s HOA fair elections statutes,[7] the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[8]  And not unexpectedly, this “front-line” position is in conflict with the CAI policy:

Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”[9]

Simply unbelievable! Believable!

State legislation to reform HOA fair elections

I am well aware, and you may raise the fact, that state laws and CC&Rs vary quite a bit in regard to voting and director elections. Some say very little except quorum requirements and secret or mail-in ballots; some require independent elections committees and vote counters, or the right to view the ballots, etc. but they all hold true to the Handbook that places strong control within the hands of the BOD. This is especially true when the BOD must approve candidates or propose amendments or rules without real member participation and voice.

Attempts to correct these injustices are found in many states. I am pleased to see that 2 legislators (Assemblyman Bob Andrzejczak and Bruce Land) in the NJ Assembly understand HOA constitutional issues and have sponsored a bill, A-3163 (2013), accordingly. The Cape May County Herald[10] reports,

Homeowner’s Associations must operate under similar rules and procedures as other governing bodies,” Andrzejczak said.  “A resident’s interest and right to approve and elect board members must be preserved. And setting clearer, more fair and unified set of rules for board elections and a clarifying a resident’s ability to recall will help to do just that.

Homeowners living in developments are still consumers and must be protected under the law,” said Land. “Ensuring their right to fair elections and protecting their right to choose board members, who will make decisions on their behalf, is a measure of consumer protection that they simply deserve as property owners.

California’s SB 323 (2019) fair elections bill was made law stating, in part,

A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association. . . . Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

Arizona’s SB 1412, making progress at the legislature, also seeks political content protections in HOA politics. It seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.  Key wording:

“AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ORGANIZE TO DISCUSS OR ADDRESS PLANNED COMMUNITY BUSINESS, INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES . . . .”

Why are these unjust and unconstitutional covenants, conditions and restrictions allowed to stand?   The misguided mission and vision statements meant to deceive; the failure to act in the interest of the members; the failure to reject the business judgment rule[11] that serves to protect the BODs over the rights of the members; and the employment of the inequitable HOA fair elections doctrine that deny a genuine consent of the governed.

The answer is obvious to those willing and able to handle the truth. The vast majority of the members have lost their freedom of mind.[12] They appear to be RWA followers[13] of the authoritarian[14] BOD. They have been thoroughly indoctrinated into the teachings of the CAI School of HOA Governance[15] where real estate attorneys provide advice on how to run the HOA and what’s good for the community.

All the more reason for this seminal position paper, Restructuring the HOA Model of Governance. All the more reason for a restructuring of the HOA model and a reorienting of HOA directors and officers to return lost constitutional principles.

 

Notes

[1] Dublirer v. 2000 Linwood Avenue Owners NO. 2011 069154 (N.J. 2014).

[2] Damon v. Ocean Hills, 102 Cal.Rptr.2d 205 (2000).

[3] Democracy Web emerged from the longstanding effort of the Albert Shanker Institute (ASI) and its founding organization, the American Federation of Teachers (AFT), to foster education for democracy in America’s schools. (Scroll down to About).

[4] Democracy Web,  scroll down to Essential Principles.

[5] Tom Skiba, Community Associations Institute Blog, Ungated, April 2, 2008.

[6] Id.

[7] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[8] “Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013.

[9] Section 8 in An Introduction to Community Association Living (2006),

[10] Herald.com (Cape May County NJ, Dec. 8, 2016).

[11] See Reorienting the HOA board: business judgment rule in the Plan.

[12] See “Cultural Dynamics of HOA-Land,” The HOA-Land Nation Within America (2019); HOA Social Dynamics — Freedom of mind pt. 1 (2020) George K. Staropoli.

[13] Robert Altemeyer, The Authoritarians, (2007).

[14] See HOA political dynamics: totalitarian democracy, George K. Staropoli (2019). “Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.” See survey on HOA authorianism,

[15] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

Goldwater Institute ignores HOA unconstitutionality

Reading through the highly respected Christina Sandefur’s paper in the Harvard Law Journal,[1] I was deeply disturbed by the absence of any discussion of similar conduct by homeowners associations (HOAs). Her paper criticized city ordinance prohibitions on short-term home rentals. “These cities treat home sharing itself as the crime.” It is a dangerous proposition that government . . . [to] be able to criminalize violations of that judgment” [“on how to use their properties”].

Yet, in her one single sentence, Sanderfur holds HOAs harmless that, by means of the governing documents, use their “police powers” to prohibit short-term rentals and from criminalizing such acts by their members. “While that may be the role of a homeowner association when people contract to determine to how to use their properties, a city government should not have that power.”

Sanderfur’s arguments against government statutory prohibitions, include in part,

  • “Cities look at this as a way to increase revenues” by imposition of fines,
  • “They get to outlaw the activity,”
  • Intimidate residents [of the city] into giving up their property rights”,
  • “This is not only abhorrent public policy, and
  • “It is also unconstitutional”.

It seems that these arguments apply to HOAs also, but it appears that nobody is listening. I do not understand and cannot understand this blindness to the constitutional issues surrounding HOAs, especially from the prestigious, defending the Constitution, public interest Goldwater Institute.

What is the rationale behind this blindness when there is substantial legal authority in support of unconstitutionality, from the basic outlaw government of independent principalities that reject the US Constitution,[2] to placing the doctrine of equitable servitudes property law over constitutional law and contract law;[3] to gross misrepresentation in the selling and marketing of HOAs that invalidate and thought of a bona fide consent to be bound.[4]

When will Goldwater question the constitutionality of the HOA model of government? Why is Goldwater viewing an HOA just as a real estate subdivision package of amenities, landscaping, homes and not as a distinct form of local government[5] functioning outside the laws of the land as an outlaw government.

“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.” (George K. Staropoli).

 CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.[6]

There is no compelling and necessary justification for HOA special treatment. It’s time to end these outlaw private governments that violate even the most liberal home rule, self-governing provisions of state laws and constitutions.[7]

I do not see Goldwater’s name on the list of Arizona’s Request to Speak positions on SB 1412,[8] a bill prohibiting HOAs from restricting the political free speech rights of homeowners in regard to political issues within the HOA community. California just passed SB 323, a progressive bill supporting homeowner rights, and Florida has SB 623 in the works also seeking homeowner rights and freedoms within the HOA legal structure.[9] This a very good time for Goldwater to speak out on this bill and HOA member rights, freedoms and privileges and immunities as US citizens.

 

The Goldwater Institute, including Sanderfur, has been on my distribution list for some time as well as Victor Riches, President & CEO, whom I met and discussed HOA problems as far back as the early 2000s when he was an Arizona legislative staff analyst. I also met with and discussed HOAs with Clint Bolick, now AZ Supreme Court Justice, who in 2013 accepted my request for legal assistance to sue the State of Arizona. He was preempted by Tim Hogan of ACLPI.[10] It was with Nick Dranias that I had a pleasant Arizona Capital Times exchange on HOA issues.[11] He offered, privately, some advice that I have incorporated into my Truth In HOAs position and Homeowner Declaration.

 

Notes

[1] Christina Sandefur, “Turning Entrepreneurs into Outlaws,” p. 45 et seq., Harv. J.L. & Policy, Winter 2020. Sanderfur is an Exec. VP, Goldwater Institute.

[2] See The HOA Principality (2005); HOA-Land: the product of the decline in democratic institutions in America. (2018).

[3] The Restatement advises judges — and is regarded as precedent — that its collection of laws known as HOA law dominates all others.   Section 6.13, comment a, states: “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law”. Section 3.1, comment h, states: “in the event of a conflict between servitudes law and the law applicable to the association form, servitudes law should control.” See CC&Rs are a devise for de facto HOA governments to escape constitutional government (2015).

[4] See HOA consent to agree vs. “the will of the majority”. (2019).

[5] The four recognized types of local government are : commission, and council-manager, the most prevalent. See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007).

[6] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[7] See in general, HOAs violate local home rule doctrine and are outlaw governments, concluding paragraph. (2014).

[8] AZ RTS positions as of today, March 4, 2020.

[9] See Toward a democratic HOA subject to the Constitution (2020).

[10] See AZ Attorney General admits SB 1454 HOA to be invalid and without effect (2013).

[11] See Goldwater Institute: regulating HOAs “stands Constitution on its head” (2008).

Sun Cities rec centers: politics at the AZ legislature

I have cautioned homeowner rights advocates to be respectful of their legislators as they are the only game in town to bring about HOA reforms.  But there come times to hold the legislators accountable for their abuse of discretion and power amounting to violations of the US and Arizona Constitutions, and failure to “establish justice, insure domestic tranquility . . . promote the general welfare and secure the blessings of liberty.”  (Preamble to the US Constitution).

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Background

Many hours were spent in researching the facts surrounding this bill to determine the real intent behind its sponsorship and the true motivations for its support.

The AZ House GOV committee just passed this reincarnation of the failed HB 2374 by a 6-5 vote (Reps. Kavanagh, Payne, Blackman, Petersen, Rivero and Thorpe all voting in favor of the bill) with the assistance of Senator Borrelli who allowed SB 1094 to be used for a S/E replacement of HB 2374. Their reasons are completely untenable giving 1) the nature of the bill, the misleading assertions, convoluted language including double negatives, 2) unbelievable legislative intent “to clarify” a 1994 bill some 24 years later, and 3) the constitutionality of the proposed statute.

Before proceeding, it must be understood that in 2015 the Superior Court in Anderson v. SCRC held the Sun City rec center, SCRC, to be an HOA.[1]  Now, 4 years later, this bill is an attempt to overturn this ruling.

In reading the bill several statements caught my attention.  I will explore them one at a time.

First, there is the question of the purpose of “before January 1, 1974.”  I cannot find any justification for this date, as prior dates are used to get around grandfathering problems to avoid litigation.  Here the bill seeks application to ‘associations” prior to this date, under the same conditions found in today’s bill.  However, Sun City was incorporated in May 1968 and SCW in Sept. 1979.  Where does 1974 come from?

1.  Nature of the bill et seq.

SB 1094 is an attempt to avoid my position that the original Sun City bill, HB 2374,  violated the AZ Constitution being a special law for a particular entity, the 2 Sun Cities.  The heart of the bill has now become permitting the “voice of the people” to be heard to reject or uphold the PUD statutes in question.  In what I referred to as cute, slight-of-hand manipulation to confuse the public, the bill permits a vote of the HOA members to decide whether or not their rec center should be an HOA or not. Say what??

The bill is cleverly worded with convoluted statements containing double negatives[2] or wording amounting to a double negative.  “This chapter [regulating HOAs] does not apply [to] a nonprofit corporation . . . that does not have authority.  And then adds an illogical approval by the membership to not accept –to reject —  the law. It seems designed to cause confusion. Read Subsections C and D carefully.

Further confusing is the redefinition of “Association” to include associations not operating as a de facto HOA to elect to become an HOA and be regulated. Say what?

Each of the 3 sections discussed is a statement that the rec centers, now “harmlessly” disguised as “associations,” are exempt from the PUD Act and regulation by the state, unless an illogical vote by the membership approves obedience to the law  — we want to be an HOA — as ruled by the court in Anderson.[3]   (This aspect of the bill is covered in more detail in (3) below).

  1. Outrageous claim of legislative intent

The PUD enabling act of 1994 is a short 2-page, 6 sections Act, of which I have a copy and have read.[4]  It does not contain any statement of legislative intent.  Its version of 33-1802, Definitions, remains essentially intact, for our purpose here, after 24 years.  SB 1094 claims to uncover an error, an oversight into the legislative intent and seeks to clarify it and set it straight. This defense is without merit, plain and simple!

The bill in its new form remains an unconscionable support of a special law for a special, miniscule application for just 2 HOAs: Sun City and Sun City West.  Furthermore, by issuing this “legislative intent” the Sponsor claims that it speaks for all the Arizona legislators aside from the 6 House GOV committee Representatives who supported SB 1094

  1. Unconstitutional delegation of legislative power

SB 1094 does not escape the constitutionality challenge  that it is an invalid delegation of legislative authority to private persons, flying in the face of long held doctrine declaring such acts as unconstitutional. This unconstitutional delegation was dealt with in McLoughlin v. Pima County  (CA-CV 2001-0198, Div. 2,  2001) concerning zoning restrictions determined by the people. In its discussion the Court quoted from several cases, and for brevity,  

“However, it is a well-established theory that a legislature may not delegate it’s authority to private persons over whom the legislature has no supervision or control.” 

The bill declares that a rec center (after redefining what an HOA is) is not subject to HOA regulation unless a majority of the owners want it to be as described in (1) above.  The people, the homeowners, are making law! That’s a mockery of the law! It is an unconscionable bill that turns the Constitution on its head and grants more freedom to the independent HOA principalities.

It is a very astute political ploy and a surprising acknowledgement of the political and social dynamics at work within HOAs.[5]  The legislative mantra, here and in other states, is that the homeowner is free to vote on amendments under the governing documents.  The wording of this bill shows that the legislators know better and understand that overthrowing the HOA board is a very high barrier to overcome.

The underlying misleading picture ignores the fact there is general apathy and indifference to homeowner participation, just like with the voter outcome in our general public elections.  In short, the likelihood of an approval of an amendment is very small, especially when there would be no lobbying by the HOA board to support the vote. Why didn’t the sponsor construct the bill to seek a positive response by the membership for approval, rather than allowing the law to be changed by the highly likelihood occurrence of a default vote —  people not voting.   It’s a rigged bill to overturn the Anderson ruling by the court.

Good ol’ fashioned politics at work “here in River City.”

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The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community and does not constitute legal advice or opinion. We perform legal research and case analysis services, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in any report, finding, recommendation or any communication, or linked to this web site and its associated sites.  No document prepared by HALRIS or George K. Staropoli is to be considered a legal document to be filed in a court or in a legal proceeding. Nothing provided by HALRIS or George K. Staropoli should be used as a substitute for the advice of competent counsel.  George K. Staropoli and no person associated with HALRIS, AHLIS, HOA Constitutional Government or Citizens for Constitutional Local Government are attorneys nor are employed by an attorney.

Notes

[1] Anderson v. Recreation Centers of Sun City,  1CV 2015-012458, Maricopa County (2018).
[2]   “Double negatives are two negative words used in the same sentence. Using two negatives turns the thought or sentence into a positive one. Double negatives are not encouraged in English because they are poor grammar and they can be confusing.” Your Dictionary.com. 
[3] Supra n. 1.
[4] See Enabling Act.
[5] See The HOA-Land culture (2019).  “We must make the injustice visible”  Mahatma Gandhi.