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).
“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.
The case of Trayvon Martin demonstrates how something as seemingly innocuous as labeling a member of an association as the “Captain” of the neighborhood watch can open an association to possible liability.
Understanding how this designation in the association’s newsletter could ultimately lead to liability for the association can help HOA’s and Condominium Association’s limit their own potential liability for actions of others. . . . A well-established legal concept is respondeat superior, which literally means “let the master answer”. Respondeat superior provides the basis for a principal to be held responsible for the wrongful acts of their agent when those acts are performed within the scope of the agent’s duties.
While an employer-employee is the most common principal-agent relationship, with the employer being the principal and the employee their agent, an agency relationship can exist whenever someone acts on behalf of another. . . . The third element; the principal’s control over the actions of the agent, should not be overlooked. The general concept behind respondeat superior liability is that a principal generally controls their agent’s behavior, and therefore the principal should be responsible to the public for the agent’s actions while the agent is under the employer’s control.
On May 30, 2012 I file a complaint against Judge Olson, No. 12-148, for illegally closing the files on the complaint against CAI attorney Maxwell by a court appointed Receiver[1]. (See Judicial misconduct complaint filed for sealing records in AZ case against HOA attorney). The AZ Commission writes that it has no problem with Judge Olson’s sealing of the records.
ORDER
The complainant alleged that a superior court judge improperly sealed a case. The responsibility of the Commission on Judicial Conduct is to impartially determine if the judge engaged in conduct that violated the provisions of Article 6.1 of the Arizona Constitution or the Code of Judicial Conduct and, if so, to take appropriate disciplinary action. The purpose and authority of the commission is limited to this mission.
After reviewing the information provided by the complainant, the commission found no evidence of ethical misconduct and concluded that the judge did not violate the Code in this case. The commission does not have jurisdiction to review the legal sufficiency of the judge’s ruling. Accordingly, the complaint is dismissed in its entirety pursuant to Rules 16(a) and 23.
I am still trying to fathom the logic or rational that the judge did not violate Rule 123(d) of the Rules of the Supreme Court. Rule 81 is the Code of Judicial Conduct that I referenced in my complaint. Under Rule 81 there is at the very start, Rule 1.1, Compliance with the Law. The act of sealing all the court record information by Judge Olson is prima facie evidence of a violation of Rule 123(d) (see Judicial misconduct complaint link above).
How can the Commission say, with a straight face, “The commission does not have jurisdiction to review the legal sufficiency of the judge’s ruling.” Who then watches the judges? Their brethren? Given the black and white issue here, the Code becomes a joke!
The entire beginnings of Rule 81 under Preamble and Scope speak to maintaining the integrity of the court, the confidence of the public, and avoiding the appearance of impropriety. Words, simply words that have no meaning at all!
What is most offensive to the legitimacy of the court, and to the legitimacy of the government, is that the Commission, the watchdog of the judiciary, took a hands-off “not me” position and did nothing. If the judicial watchdogs fail, what then of the judiciary itself that watches the government? It, too, most fail, and so too the government.
[1]DC Lot Owners v. Maxwell & Morgan, CV 2010-004684, Pinal County Superior Court, AZ.
Adrian Adams, a California CAI member attorney has spread the word about HOA manager UPL activities. And the word will continue to be spread to all states since they all has UPL rules. This blog entry follows just a week after my Commentary, Final Order: HOA management firm engaged in unauthorized practice of law, was published.
In the June 24, 2012 of the Davis-Stirling.com eNewsletter, “Managers Practicing Law.” Adams offers the following advice to HOA boards,
Directors will have difficulty convincing a jury that seeking legal advice from a manager was prudent. . . . When asked for legal advice, a manager should always recommend that the board seek legal counsel. Doing so protects both the manager and the board.
Let’s step outside the box! UPL supreme court rules have been around for many, many years in all states. During all this time, where were and what were the CAI self-proclaimed HOA legal experts doing? Did these experts not know about state supreme court rules on UPL? Well, that’s no excuse, if true.
If homeowners can be held accountable under CC&Rs that need only be recorded at the county clerk’s office, sight unseen and without an explicit buyer signature, why should these attorneys escape accountability for negligence to their HOA clients?
CAI is the national lobbying entity, whose members have repeatedly gone before state legislatures to propose statutes governing HOAs on behalf of all the HOAs and homeowners. (CAI has a miniscule number of homeowners as members, at most 30,000 of some 25,000,000 HOA families). And CAI attorneys often take the word of the HOA manager with respect to the validity of legal action, without the independent review required by civil court rules that the action is based on facts and the law (Rule 11(a), Signing of Pleadings).
The CAI attorney silence is disgraceful and violates the rules of civil procedure and professional code of conduct. Ethical rule 3.1, Organization as Client, of the code of professional conduct, specifically relates to the attorney’s awareness of illegal conduct by the client or “other person associated with the organization,” and 2.1, Advisor, whereby candid advice on moral and ethical issues may be rendered to the client.
I wonder what the reaction is from those 9 states that use CAI to license managers: Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Illinois, Nevada, and Virginia. Or from those towns, like in Arizona, who sponsor CAI seminars on good governance.
This egregious conduct is another solid example of the true nature of CAI’s involvement in the HOA governance industry. It is unquestionably in the self-interest of its members, both its attorney and its management firm members.
HOA Constitutional Government 