due process – Page 21 – HOA Constitutional Government

How far will independent HOA principalities go in usurping police powers

In this Illinois case, Poris v. Lake Holiday POA, the HOA was held to unlawfully assume civil police powers. Here’s the extent to which the HOA gave the false impression of municipal police officials and their legitimate use of police powers. The private HOA security officer detained the homeowner for about 4 minutes while checking his license info, but admitted he was not a cop.

The following covenants can easily be viewed as an intentional impersonation of municipal police powers. Note the similarity in verbiage to civil government criminal code and authority (paragraph numbers are from the court’s opinion).

[covenants]

¶ 5 The board is authorized to adopt rules and regulations that the board deems necessary for the best interests of the Association and its members. The board promulgated several rules pertinent to this case. The board adopted a rule authorizing “private security officers” to enforce the Board’s rules and regulations, including the power to “issue citations for violations.” Another rule prohibits members from obstructing officers:

“No person shall knowingly resist or obstruct the performance by one known to the person to be a public safety officer of any authorized act within his or her official capacity. No person shall fail or refuse to comply with any lawful order or direction of any public safety officer authorized by the Lake Holiday Property Owners Association. A request to examine personal identification, such as a driver’s license, in addition to a member’s amenity pass shall be honored. CLASS A VIOLATION.”

¶ 6 The board also approved a rule to regulate speed on Lake Holiday property: “Unless otherwise posted, the speed limit on all Lake Holiday roads shall be 25 miles per hour. Speed limits shall be strictly enforced. Violations from 1 to 10 mph over the posted speed limit are CLASS C VIOLATIONS. From 11 to 15 mph over the posted speed limit are CLASS B violations. From 16 mph or over the posted limit are CLASS A VIOLATIONS.”

A Class A violation carries a $200 penalty for a first offense. A Class B violation is punishable by a $100 fine for a first offense. The fine for a Class C violation is $50 for a first offense.

¶ 7,(in part)

All officers are required to wear a badge, uniform and “duty belt.” A “duty belt” may “include weapons that the officer is certified to carry on duty.”

[end covenants]

¶ 16 Neither Clifford nor any employees of the Association’s security department have been given police powers by the La Salle County sheriff’s office. Clifford has never been given any authority or permission by any police agency or the La Salle County Board to stop vehicles, use overhead lights, use radar to measure the speed of vehicles or make audio and video recordings on Association property.

¶ 28 The security officers employed by the Association are attempting to assert police powers. They have neither the right nor the power to do so. They have only those powers that ordinary citizens have. See Perry, 27 Ill. App. 3d at 239. The practice of stopping and detaining drivers for Association rule violations is unlawful.

¶ 35 The Association is not a commercial enterprise in the business of “keeping people secure and free from danger.” Rather, it is a property owners’ association created “[t]o promote and enhance the civic and social interest of the owners of real estate in Lake Holiday Development in so far as those interests relate to the maintenance of Lake Holiday.” Thus, the Association is not a “security company.”

¶ 53 Here, Podnar activated his overhead lights, causing plaintiff to pull over and stop. Podnar exited his vehicle, wearing a uniform, badge and duty belt containing weapons. He told plaintiff to wait in his car and took possession of plaintiff’s driver’s license. Plaintiff remained in his car for several minutes until Podnar returned his driver’s license, issued him a citation and told him he was free to leave.

¶ 54 Under these facts, plaintiff was restrained by Podnar. . . . Since plaintiff’s liberty was restrained, the first element of false imprisonment was met.

Poris v. Lake Holiday, 2012 Ill. App. LEXIS 42; 2012 IL App (3d) 110131 (Jan 24, 2012)

See commentary by Evan McKenzie at Case shines light on how much power private security has when policing neighborhoods (Feb. 24, 2012),

Does civil government rule or does it submit to private HOA groups?

Dear Arizona Senators,

I continually am amazed at the opposition to this bill and the mistaken belief that any private contract can supersede legitimate local government. We all know that there is no absolute right to private contracts! HOAs are ignoring their role in a democratic society to obey the rules, as they like to say about homeowners in HOAs. They should follow the rules of this society and go to the planning board for a variance. Like they repeatedly say, “Homeowners can go to the courts, to agencies, to get a fair deal, etc.” but that’s not for the HOA that insists on making their own rules. It is simply a power play as to who rules the municipality.

The legislature has no choice but to uphold public government authority. If problems exist or changes are desired, since the HOA does not own the public roadway, the HOA can do what all citizens are entitled to do, go to their planning board and ask for a variance. The fact that the initial planning board approved these private roadways speaks to the retention of public government authority, otherwise it could have required private streets.

Please bear in mind, since CAI loves constitutional challenges as it fought over the proper delegation of authority to DFBLS, the court ruling in McLoughlin v. Pima that held,

However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control

and

The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified, (Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (Ariz. App. Div. 2 2002), ¶ 7).

HOAs have usurped and assumed public government functions! And we all know accountability to and proper supervision by state the does not exist with HOAs to meet this constitutional requirement. They cannot have their cake and eat it, too! They cannot demand special consideration not to be held accountable and then do as they please.

Please make it clear to all persons that we are one state, indivisible with liberty and justice for all. Please pass this important bill.

Note: This bill, SB 1113 and its House duplicate, HB 2030, simple reassert public government control over public streets within an HOA subdivision. HOAs have fined homeowners for any car parked in front of their homes.

AZ SB 1468 – holding HOA boards personally liable for going to court

SB 1468 is one of three bills that will put into place strong and effective penalties against HOA boards who use the threat of law suits to intimidate and punish homeowners into keeping their mouths shut. This bill will hold directors personally liable for the HOA’s attorneys fees if they lose in court.

This long needed enforcement of HOA laws against the boards, rather than just the members, comes about as a result of the HOA industry failing to police itself and to oppose intentional and rogue HOA violators. HOA lobbyists pay lip service to the ”5%” bad boards, but oppose any meaningful attempt to reign them in, a gross failure to act as a good corporate citizenship. Well, it’s time to pay the piper! HOAs “have gotten away with murder” against widows, retirees, single parents, minorities, and those who do not have the money or stamina to buck the HOA. Many of which are simply having the board to just comply with the law and governing documents.

Not only are the boards themselves directly at fault, they are also guilty of abdicating their duties and responsibilities under the law and governing documents to their hired hands, the attorneys and management firms. They are negligent in allowing their agents to act without accountability and without proper oversight and restrictions. The HOA attorneys make money win or lose by going to court. The HOA attorneys often step across the line and collude with the president and wayward boards to violate the laws and governing documents under the excuse of “in defense of my client.” They violate Arizona R. Civ. P. 11(a) (federal rule 11(b)) that requires,

The signature of an attorney or party constitutes a certificate . . . that to the best of the signer’s knowledge, information and belief formed after reasonable inquiry it [the complaint] is well grounded in fact and is warranted by existing law . . . and that it is not interposed for any improper purpose, such as to harass . . . or needlessly increase the cost of litigation.

and Supreme Court Rules of Professional Conduct, 1.2(d), counseling client to break the law, and 1.13(b), Organization as Client, with respect to knowledge of client breaking the law.

Former Arizona Supreme Court Disciplinary Commission Chair, David D. Dodge, wrote about attorney “overzealousness” in the June 2005 edition of Arizona Attorney. (See my Commentary, HOA attorney fiduciary duty to homeowners).

The pro-HOA forces will immediately cry, “NO one will want to become a board member and the HOA will fail.” Well, I got news. Not too many members are rushing to become board members today, anyway. This bill requires the legislators to not only make a just and proper approval of the SB 1468, but to take a proper and just ethical and moral stand against authoritarian, undemocratic private governments that abuse the citizens of Arizona. Violations of the laws and our principles of democratic government cannot be allowed to continue! There are existing legal mechanisms today — just as there are mechanisms for HOAs to obtain public street variances, but HOAs prefer their independent principality status rather than be part of the greater community — that will maintain the perceived planned community benefits while holding the HOA government subject to the 14th Amendment as required of all government entities. (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters).

Homeowners in HOAs have been waiting a long, long time for effective enforcement against HOA violators. Passing SB 1468 would be a very good start!

PS. The other bills are HB 2445 and SB 1240.

SB 1468 changes to the law

Notwithstanding any provision in the condominium documents, if a unit owner incurs attorney fees in a court action between the condominium or the board and the unit owner regarding enforcement of the condominium documents and the unit owner substantially prevails in the action, the following apply:

1. The members of the board of directors who voted on the record to support the court action against the unit owner are personally liable to the association for attorney fees and costs incurred by the association in the action.

2. If there is no record of who voted to support the court action against the unit owner, all of the members of the board of directors are personally liable to the association for attorney fees and costs incurred by the association in the action.

The ‘voice of the people’ must muster against the Constitution – including HOAs

The Ninth Circuit Court of Appeals (CA plus) rejection of the voice of the people, Proposition 8, same sex marriage, demonstrates that acts and votes by the people must stand muster against the Constitution. And that was a majority voice. “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause,” [Judge] Reinhardt said.

CAI— the national, pro-HOA lobbying trade group — and other pro-HOA stalwarts have repeatedly argued that the voice of the people, the members of an HOA, under a private agreement, expressing the alleged voice of the people because they live there, should prevail regardless of the Constitution. Their rationalization is, “better landscaping makes a better America.”

In effect, they ignore and reject the Constitution. In effect they argue for, encourage, promote and incite sedition against the lawful and legitimate government of this country and the states.

The government cannot meet the strict judicial scrutiny for the surrender of private property rights in order to allow current statutes to remain. Our government cannot claim, “I didn’t know.” There is no legitimate justification for the denial of the equal application of the laws and due process protections for citizens living in an HOA. Unless, of course, for national security reasons to protect against terrorism.

Arizona Senators debate HOA legal status

The Voice of Times Past and the Voice of Times Present

A lengthy exchange, exemplifying the polarized views of the HOA legal concept occurred between two committee members during the Senate VMGA Committee hearing on SB 1113, control of public roadways (Jan. 31, 2012). I refer to the two Senators as the Voice of Times Past and the Voice of Times Present.

Senator John Nelson, Times Past, speaks from the past and echoes the pro-HOA themes of maintaining property values, of freedom of contract, and unquestioned consent to agree and full compliance with contract law. His position speaks in favor of HOAs as independent principalities above all other laws of the land, holding that private parties can contract to avoid the Constitution and laws of the land.

I do not mean to be disrespectful, as the Senator appears to truly believe in his position — and we all are entitled to our beliefs — yet he has not realized the implications of his beliefs on his duties and obligations as a state senator. He has failed to address the consequences and impact on society of such beliefs, which have become ingrained and dogmatic over the many years

Senator Frank Antenori, Times Present, speaks of constitutional infringements by the HOA legal concept and of violations of our principles of democratic government by de facto private entities unaccountable under the Constitution. These issues were also raised by the bill sponsor, Senator Nancy Barto.

What is apparent in this exchange is that to resolve the alleged safety issues on street parking, the HOA simply refuses to make use of the legal vehicle of seeking planning board variations, thus making this a political power issue between public government and private HOA principalities. Furthermore, putting “we can contract to do anything we want,” even to ignore the laws of the land, is an absurdity too often used by those seeking unrestrained power, and too often irresponsibly thrown about. Case law has repeatedly rejected any such unqualified authority.

(It should be noted that CAI did not speak at this hearing, and it’s member blog did not address constitutional issues of de facto private governments seeking special treatment above the laws of the land).

What the Voice of Times Yet To Come will have to say depends on what occurs today, in Arizona, and in all state legislatures across the country. Will the 200 plus year American experiment in democratic government be extinguished by a successful second, 48 year American experiment in private, authoritarian government functioning under fascist principles?

The bill squeaked by and was passed by a 4 – 3 vote.

The complete public video of the hearing can be found in the Arizona Legislature video archives for that hearing (click here). Jump to 39:00 minutes for the 30 minute exchange. After viewing the video, you will better understand how HOAs have become a second political government at the local level, and what legislative obstacles lay in the way to susbstantive HOA reform legislation.

At about the same time as this Arizona debate, an NPR radio talk show took place in Charlotte, NC (WFAE, Charlotte Talks, Mike Collins, host) that also addressed the good, the bad and the ugly of HOAs. It is well worth listening too, as it also addresses public policy concerns. The link can be found at the North Carolina Coalition for Homeowners Rights website.

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