Tag: free speech

Media fails 1st Amendment free HOA speech

The media has failed its First Amendment prerogative of protected free speech. The Founding Fathers well understood the need for an informed citizenry for a healthy democracy and made free speech the 1st Amendment. However, America has become divided and the courts, including the Supreme Court, have adopted a policy that biased, personal agenda speech is OK because America has many channels for opposing speech. For example, FOX  News and MSNBC.

But the media has silenced the opposing views of HOA members themselves.

The Supreme Court (New York Times Co. v. Sullivan (1964),  with respect to newspaper articles, held:

“In the case of the newspaper that published inaccurate information, that form of speech would not be protected by the First Amendment if the newspaper published falsehoods knowingly and purposefully. . . . The Supreme Court ruled that the newspaper was constitutionally protected in this instance, despite the false allegations, since the newspaper did not knowingly and recklessly publish the inaccuracies.”

In response to a call for a media contact committee by HRLNG (FB) I wrote today:

“This has been a long-neglected point of power for advocates, realizing that the media is part of what I’ve designated as, “the unspoken alliance of NO HOA negative stories.” Ask yourself, recalling all the TV anchors telling you that they ask hard questions, they get to the facts, etc. yet nothing bad about HOAs that amount to substantial issues. Yes, they talk about this incident and that incident, but substantive issues go ignored. This must be the substance of your approach! Example: NAR and all state chapters claim they are here for you the home buyer and you can trust your Realtor (This term is the NAR members only). BUT HOA??? What’s that??

“The Homes Association Handbook, the 1964 “bible” for HOA-Land was supported by that version of NAR. AARP had some articles but no lobbying for its age 50+, members. Why not? This committee must not be afraid to ask these hard questions. What do you have to lose? They did very little for HOA reforms. CHALLENGE THEM and ask hard questions in pursuit of the truth!”

CA bill AB 1410 –  a step backwards for HOA homeowner rights

In 2018, California Civil Code §4515 was a major step in restoring fundamental protections for free speech by members with respect to HOA governing issues.

“(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.”

AND JUSTICE FOR ALL

Now, AB 1410 seeks to restrict these rights under the guise, it seems, that the HOA website is private and therefore it can adopt restrictive rules legally. In a typical “what you see is not what you get” maneuver, the bill would grant the HOA the power to moderate message content in strict opposition to legal holdings — that content based free speech is protected and any editing must be unbiased.

The bill sections start with §4515,

“(b)  The governing documents, including bylaws and operating line 4 rules, shall not prohibit a member or resident of a common interest line 5 development from doing any of the following:”

But watch out, what is granted is now removed under (b)(6) subparagraphs (B) and (C), and especially (D). In a “flip-flop,” designed in my view to confuse the average homeowner, it then informs the homeowner that he is still protected because the HOA must follow the rules it is attempting to circumvent. (pp. 93-94).

What’s the point? To make  it difficult for homeowners to understand the legislation and their rights all well knowing that those in power will only cite the pro-HOA points and omit the pro-homeowner protections.

GOTCHA AGAIN! Don’t fall for it!

This attempt by Rep. Rodriquez feels like an anti-slapp move if it were in the courts — an action to stifle free speech. Marjorie Murray presents 2 instances of where an anti-slapp motion can and should be used against the HOA. Contact Murray (info@calhomelaw.org) for more information.

Center for California HOA Law opposes the bill and urges Californians to contact their representatives and Judiciary Chair by phone. The committee will hear this bill this week.

AZ fair election bill HB 2158 moves on

Arizona HB 2158 passed the Senate GOV committee 8 – 0. YES!

I congratulate the speakers supporting this bill who told horror stories and made substantive issues of unconstitutional actions by HOAs.   It was a broad bill to establish fair election and voting procedures concerning HOA governance issues.

I call to everyone’s attention my “Mgmt Case Studies” 1 and 2 reveal deep violations of the laws and governing documents by large HOAs.  Worth reading at https://pvtgov.wordpress.com

HOAs deny opposition free speech

This morning on CNN Michael Smerconish discussed the question of free speech with respect to disagreeing with a position.  In this highly sensitive environment too often a disagreement with a position evokes an angry demand to remove or not publish the statement. That is not free speech but, as Smerconish said, “my-speech.”  It is not asking for agreement but free speech – let the other person have his say. Let a dialogue ensue which is a must for a healthy democracy.

In the culture of the HOA-Land Nation, any opposition to, or criticism of, the HOA or its board of directors is too often met with angry condemnation, character assassination, ostracization, and the non-publishing of the opposition voice. Some HOAs give the appearance of concern but  only provide token  Q & A dialogues with no real exchange of the issues. This open opposition to free speech is endemic to the HOA-Land culture and reflects an undemocratic, authoritarian cult-like environment.

Problems with HOAs, as we are all aware of, cannot be resolved when member criticism and opposition is squelched as a matter of policy.  Until the members say, “enough is enough” and demand constitutional reforms the problems will continue unresolved.

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).