Tag: free speech

Protecting HOA political free speech on matters of general community interest

Should matters of concern and interest to the general HOA member-community be protected from suits designed to stifle participation in HOA governance?  Homeowners in HOAs should be protected from these suits, called SLAPP suits, just as the general public is protected in most states that have anti-SLAPP laws.

The question becomes: will the courts hold issues of HOA governance to be a matter of general public interest and concern?  A failure of the courts to do so puts HOA governments solidly into the category of independent principalities, where members are not permitted free speech on community public issues, especially about their governing body, the HOA.

The expected defenses are 1) that HOAs are private, contractual governing bodies not subject to the 14th Amendment protections, which the members have agreed to obey; and disregarding the Ruiz opinion above,  2) the local HOA community cannot be considered as a public body that is interested in and concerned with matters of public interest; it’s a local, private matter.

There are several California cases holding that HOA concerns amount to public speech because it affects the community at large.  The following are anti-SLAPP suits.

“A SLAPP suit (strategic lawsuit against public participation) is a lawsuit brought primarily to chill a party’s constitutional right of petition or free speech. The anti-SLAPP statute was enacted to prevent and deter lawsuits that chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances and provides “an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims” arising from the exercise of those constitutional rights. . . . . The resident’s front lawn is a public forum for purposes of the First Amendment. . . . Moreover, it is now well established that the anti-SLAPP statute protects private conversations as well as those occurring in a public forum.” (Santa Barbara).

“’Public interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters,  ‘private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.’ (Ruiz; according to California statutes).

[My emphasis]

“[W]e hold the trial court properly determined the anti-SLAPP statute applied because the evidence showed the alleged defamatory statements were made “in a place open to the public or in a public forum” and concerned “an issue of public interest. . . .  The two locations where the alleged defamatory statements were made–at the Board meetings and in the Village Voice newsletter [HOA] –were open to the public and constituted “public forums.” Additionally, because each of the allegedly defamatory statements concerned [*11] the manner in which a large residential community would be governed, they concerned “issue[s] of public interest.”  (Damon).

“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).”  (Damon).

My quick survey of state anti-SLAPP laws shows AZ, IL, HI, GA and MD as having strict laws relating to only issues before the legislature or a law, as petitioning rights.  A host of other states contain the much broader right to file an anti-SLAPP suit for issues of public interest. They are: CA, FL (as of 7/2015), IN, LA, OR, RI, TX, VT, and WA.  Check current status.

Case references:

  1. Santa Barbara Beach Club HOA v. Freeman, 2d Civil No. B212972 (Cal. App. 2nd 2010)
  2. Ruiz v. Harbor View CA, 37 Cal.Rptr.3d 133 (2005)
  3. Damon v. Ocean Hills [an HOA], 102 Cal.Rptr.2d 205 (2000)

HOA constitutionality will cause the collapse of CAI

Ever wonder why CAI so vehemently fights the view that HOAs are indeed mini-governments, or quasi-governments?  Its amicus curiae brief in Dublirer v. 200 Linwood Avenue[1]  is a meritless, desperate attempt to prevent the NJ Supreme Court from coming to the conclusion that as a government, the HOA election process must be constitutionally protected.  It failed. The Court upheld constitutional rights to a member’s free speech especially in regard to HOA campaigning.

CAI argued that HOAs are businesses and that business owners don’t have constitutional protections.  It practically begged the Court not to allow open public discussions of political issues, because the HOA would lose its privacy rights. Isolationist mentality!  It argued that constitutional protections are not needed because other mechanisms, like the business judgment rule, would handle disputes.  And, that election rights are not protected by the state constitution, but by the pro-HOA statutes and adhesion CC&R contracts.  To paraphrase a line from the movie, The Treasure of the Sierra Madre, “We don’t need no stinkin’ constitutional protections!”

Such statements made in court filings are astonishing!  It is a complete refutation and about face to CAI’s propaganda material made for public consumption.[2]  It repudiates our democratic system of government and the US Constitution!

What would cause CAI to argue such statements without merit before a state supreme court?  Maybe because CAI knows that if HOA constitutionality is accepted and HOAs are seen as state actors or made to become state entities, it would no longer control and dominate the industry.  All would be lost!

HOAs would not be lost as CAI has argued from time to time.  CAI would be lost!  It would have to rethink its public policies, its Best Practices, it training seminars, etc.  It would need to include such courses, which are not and never have been in the CAI vocabulary, understanding the Constitution and Bill of Rights, good local government, best city management practices, etc.

The path to substantive HOA reform legislation has always been on the basis fundamental principles, democratic principles of government, and the US Constitution.  The courts are beginning to see the error of their way.  And CAI cannot prevent the inevitable from happening — it’s just a matter of how soon!

References

1.    See CAI: the HOA form of government is independent of the US Constitution.

2.    See Misrepresentation: CAI comes with unclean hands and Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

NJ Supreme Court upholds constitution against HOA free speech electioneering violations

Those familiar with rogue HOAs have seen this occur time after time – board control of the electioneering process.   In, Dublirer, a NJ Supreme Court case, [1]

“The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.”

Finally, a state supreme court said enough is enough and free speech in elections for members dominates the governing documents, and the state constitution prevails (This case was not filed under federal laws).

Under that approach, we find that the Board’s policy violates the free speech clause of the State Constitution. The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns. We therefore affirm the judgment of the Appellate Division.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.”

Thus, even though Dublirer did not run for public office, his 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.

Essentially, members – and speaking with respect to member-owners — must be given equal access to the membership as long as the campaign does not excessively disrupt the “tranquility” of the community. Suitable means must be given to members to allow for free speech expressions. The HOA had argued, beyond technicalities that were dismissed, that members had no free speech rights.  Imagine that!  CAI’s description of HOAs as democracies was just contradicted!

The Court held,

“On balance, we find that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s right to free speech outweighs the Board’s concerns about the use of the apartment building. We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.”

It appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.  To ensure that local community government works for the member-owners, don’t due process protections and the equal protection of the laws under the 14th Amendment require judicial enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

As for CAI’s amicus brief, it denied free speech rights to homeowners, declared HOAs are businesses and members are like stockholders during board elections, and other non-constitutional methods were available so forget about applying constitutional law.  Sounds like a belief that HOAs are indeed independent principalities (See Establishing the New America: a new book).

CAI cannot allow HOAs to be treated as equivalent to state entities.  See Commentary posted here.

Note 1.  “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).

CAI: the HOA form of government is independent of the US Constitution

In its amicus brief in the NJ Supreme Court Dublirer case [1] involving free speech in an HOA election campaign, CAI clearly makes the point that HOAs are not subject to constitutional protections and elections processes are covered solely by the HOA governing documents.

These rights of members do not arise from the State Constitution but rather from statutes, contract, the association’s and governing board’s fiduciary duties, public policy and fundamental fairness.

In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.

What CAI is saying is that the pro-HOA statutes that it helped write and the adhesion contracts executed under misrepresentation [2] supersede the protections of constitutional law.

Furthermore, CAI attempts a strenuous argument of “the sky is falling” if free speech was allowed in private HOA communities, which would doom the essential private nature of HOAs.

CAI-NJ’s concern is the attempt to convert private communities into constitutional actors and to open such communities to access not only to speakers from within the community but also to the public, while ignoring contractual agreements and non-constitutional protections.

This case did not deal with outside speakers, but a member running for office and seeking equal access to the membership. CAI then raises another of its favorite “cause celebres” — HOAs are businesses.  Read this fantastic argument:

The relationship between the plaintiff and the defendants here is that of a business corporation and so is similar to that involved in any other business corporation. A shareholder who wishes to run for a position on a corporate board has no right to post campaign signs on the corporation’s property. Moreover, if such a shareholder wishes to distribute campaign literature to the other shareholders before the issuance of the corporation’s annual meeting announcement and proxy, such shareholder must do so at his own expense. Dublirer’s position vis a vis the cooperative here is no different. He has no constitutional right to distribute his campaign materials within the cooperative’s property simply because mailing them to the other tenant/shareholders may cost him money”.

This in the trenches argument stands in stark contrast to CAI’s propaganda statements made for public consumption that HOAs are democratic and represent the best town hall democracy in America.  If HOAs are businesses, why is the term ‘community” used rather than “cooperative”? For example, like “building vibrant, harmonious, competent cooperatives.”

And finally, CAI makes its last ditch appeal that there are other non-constitutional protections for HOA members so the court need not introduce the Constitution into HOA-Land.  Let them remain independent principalities where hired-hand stakeholders like CAI can control and dominate.

This is CAI’s most fearful event of all, that the courts will hold HOAs as constitutional actors or state entities and subject HOAs to the 14th Amendment protections.  This state of affairs would be the death knell not of HOAs, but of the need for CAI itself.  And CAI well knows and fears this eventual outcome.

These views by CAI before the courts and not propaganda for public consumption must be made known to the media and to all state legislatures and legislators.  Then the legislators must be asked where they stand? Behind the Constitution or behind CAI?

Notes

  1. “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).
  2. Misrepresentation: CAI comes with unclean hands.

Getting the Feds involved in HOA reforms

As apparent from the Illinois Supreme Court opinion[i] favoring HOAs, the Feds need to get involved. However, the Feds, like state attorney generals, have no specific authority to get involved – HOA/condo states are state laws, except for those federal laws like the American Disabilities Act and Fair Housing.

A broader approach is necessary in order to wake up the Feds, and that can come about by an appellate or US Supreme Court case decision on 1) violations of a homeowner’s constitutional rights, or 2) a violation of the 14th Amendment’s equal protection clause brought under federal law § 42 U.S.C. 1983, Civil action for deprivation of rights. This approach would be similar to the whistle blower law suits of Erin Brockovich or Jeffrey Wigand (tobacco nicotine is addictive).

Read the paper at constitutional rights . . . .

 

[i] See IL Supreme Court holds HOAs “are a creature of statute,” and not contractual.