Tag: justice

HOA principalities: To bee or not to bee one government under the Constitution

As a result of a conflict over bees and whether local ordinances or HOA CC&Rs governing beekeeping prevail, the Tennessee Attorney General is being asked his opinion on HOAs as public entities.  Rep. Glen Casada has sought a clarification from Tennessee Attorney General Robert Cooper “for an opinion on whether or not the HOA is considered a political subdivision of the state.”  (The AG was appointed by the TN Supreme Court, and is an officer of the court and not the Executive branch).

How shall the AG decide?   Take a very narrow view and simply declare that the HOA is a nonprofit corporation under corporation laws and not a municipal corporation; therefore it not a state entity. If so, how does he address the fact that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck?”  “A rose by any other name is a rose.”  A tax by any other name, assessments, is a tax.  A law by any other name, regulations or covenants, is a law.  In fact, British municipal law equates the term law with by-law. “3. British . an ordinance of a municipality or community.”

Let us assume that the AG takes a firm stand and enters into the foray.   The safest approach is to turn to the ancient public functions test of 1946 with respect to a company town and free speech. His decision would deny that the HOA is a public entity, probably, since the HOA doesn’t meet the public functions test. 

This view has always disturbed me when I examine the state’s municipality laws on incorporation of towns and villages. They ain’t got no such tests, yet they are declared public entities if they declare their allegiance to the Constitution and are approved by the state.   I guess it’s OK to use double standards when it comes to HOA governments. 

Are there any other criteria that bear on whether or not an entity is a public entity, or that it is a state actor acting as if it were indeed a state entity?  The law is rather extensive on state actors and state action. In today’s environment with the attitude of “no government interference,” applying state actor designations to HOAs will be a difficult task since it would extend the reaches of “big government.”  But, when dogma prevails over facts we must fight for “truth, justice and the American way.”

US Supreme Court holding in TN state actor case

The US Supreme Court has set several criteria for state actions and state actors, among them: a “close nexus,” a “symbiotic” relationship, “state’s exercise of coercive power”, “entwined with governmental policies”, and “significant encouragement, either overt or covert.”  They are discussed, in of all cases, in Brentwood v. Tennessee Secondary Schools, 531 U.S. 288 (2001).

I hope Attorney General Cooper will uphold the US and Tennessee constitutions, knowing full well that even homeowners living in HOAs are US citizens and citizens of the State of Tennessee, with full rights, privileges and immunities.

A free speech ‘puzzlement’: tattooing vs. HOAs

Echoing the thoughts of Yul Brynner in the 1956 King and I movie (Anna and the King of Siam), I’ve encountered a “puzzlement.”  In the just released 27 page opinion of the Arizona Supreme Court in Coleman v. The City of Mesa, No. CV-11-0351-PR, the Supreme Court ruled that the lower court must allow the tattoo artists to show that tattooing was a protected expression of free speech.  The City of Mesa had a discretionary zoning ordinance against tattooing establishments.  The higher court held that the trial court could not summarily dismiss the complaint as not having a questionable issue of law.

The complaint sufficiently sets forth claims for relief for alleged violations of the Colemans’ rights to free speech, equal protection, and due process. Whether they can prove those claims will depend on the course of proceedings in the trial court.

I will not go into the legal details of the court’s analysis, but allow me to make some comparisons with HOA free speech issues from the point of view of “consent to be governed” (not discussed in the opinion).  I refer to the pro-HOA arguments that continuing to live in your HOA is an implicit agreement to be bound by the ruling private HOA government under its pseudo-constitution and pseudo-laws. That argument, alone, the courts have repeatedly held, controls the homeowner’s consent to agree.

BUT, as we have in this case, shouldn’t operating a tattoo parlor in the City of Mesa be likewise viewed as an implicit consent to agree to city zoning ordinances, among other public laws?  And as such, haven’t the artists waived and/or surrendered their constitutional rights that they are now arguing that they still retain?  Like it is argued against HOA members? Apparently not, for the supreme court there are sufficient grounds to make such a legal argument (helped by the Goldwater Institute).

It’s a puzzlement.  Why two sets of legal doctrines?  One for the public and one for a class of citizens who live in HOAs?  A real puzzlement.

If the watchdogs of the judiciary fail, it follows that the government also fails

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.

 Dated: August 15, 2012.

FOR THE COMMISSION

 

Its first reaction to my complaint was to attack the messenger, asking how did I know about the case. (See AZ judicial conduct comm. on hidden HOA attorney case: who let the cat out of the bag?).

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.

Court decisions: HOA Enlightenment Movement vs. the Dark Ages

In this “groundbreaking decision”, as described by Evan McKenzie in  his Privatopia Blog, the Illinois appellate court made a ruling consistent with the HOA Enlightenment Movement.  Neglect by a condo asociation to make repairs affecting a unit is a defense against continued payment of assessment.  This is a major step toward homeowner justice that removes the “pay no matter what, or lose your home” doctrine of the authoritarian HOA governments.

The case, Spanish Court Two Condominium Association v. Lisa Carlson (2012 IL App (2d) 110473), involved a demand for assessments owed plus a possession — forcible entry — of the unit that was alleged to have suffered damages due to the condo association’s neglect.  (Understand that the condo sued under the Forcible Entry Act to repossess the unit). The court held the condo in the same position as a landlord under the landlord-tenant laws, which allow a tenant to withhold rent as a defense against forcible entry.

 We hold, by analogy to the case law on actions brought under the Forcible Entry Act by landlords for possession of leased property due to unpaid rent, that the unit owner may claim neglect as a defense to the board’s suit under the Act.

 And of very important significance for case law precedent is the holding on the mutual obligations of the CC&Rs contract, my emphasis, (p. 13,14),

 “Plaintiff suggests that a board’s right to collect assessments is absolute and that a claim for nonpayment of assessments is not subject to any affirmative defense.”

[The court replied,] “nowhere does the . . .  Condominium Act suggest that the right is absolute.”  The Condominium Act appears to set the rights of unit owners on par with the rights of the board of managers. Moreover, the rights arise from mutually exchanged promises—on the one hand to pay assessments, on the other hand to maintain the common elements—and so the Declaration and the Bylaws are best seen as contracts.

[T]he condominium instrument indicates (as presumably most do) that the unit owner’s promise to pay assessments is in exchange for the board of managers’ promise to use those assessments for the repair and maintenance of the condominium property, the unit owner may claim, as a justification for nonpayment of assessments, that the board of managers breached its duty of repair and maintenance.

 Contrast this decision with the recent California Supreme Court opinion, reflecting a culture still in the Dark Ages sorely in the  need of enlightenment, Pinnacle Museum Tower  v. Pinnacle Market Development( No. S186149, Aug. 16, 2012 ).   Here the court validated the binding arbitration clause with (my emphasis),

 [T]the Davis-Stirling Act ensures that the covenants, conditions, and restrictions of a recorded declaration — which manifest the intent and expectations of the developer and those who take title to property in a community interest development — will be honored and enforced unless proven unreasonable.

 Under its Discussion, B. Contractual Nature of Terms in a Recorded Declaration, the court gives an instructive presentation on the preferential treatment of the declarant/developer, consent to obey, waiver of rights, “for the common good,” and the open-ended amendment process.  Section C explains what constitute an unconscionable contract clause, rejected in this instance.  Very informative of the Dark Ages culture.

 

The HOA Enlightenment Movement is rolling on, and will gather momentum as the truth, justice, and the American way shall once again prevail.

The role of the HOA apathy affliction in circumventing public policy

In my prior Commentary, See The HOA apathy affliction: a political dynamic, I wrote about the HOA attorney driven recourse to complete rewrites of the CC&Rs that works because of the apathy affliction that is thriving in HOA-Land.  I would like to now add that this approach, in general, is an intentional violation of your state’s public policy.

Public policy is expressed in many ways by the actions or inactions, and statements or non-statements by government officials in the executive, judiciary and legislative branches. What bills are made law or not passed, and the intention of the legislature, when and if explicitly stated, makes public policy. 

In Arizona, for instance, HB 2441 (2011 session) was submitted and aggressively supported by the CAI chapter. It contained, among other things, a provision for the minority control of the CC&Rs amendment process by allowing as low as 33% of the all members to approve an amendment. While the Apache Wells rewrite contains a very vague and loose requirement for amending the CC&RS in contrast to the detail by-laws amendment process, it lacks homeowner protections.  There are no requirements for notice, meeting at which the voting is to take place, no approval requirement, etc.  (The prior 1987 CC&Rs required a majority approval of all the members).  The 50% vote is misleading as to homeowner protections without all of the above in place, as has occurred in the Fourth Amendment rewrite with respect to the minority approval of special assessments (See below and the prior Commentary link)..

10.4. Amendments. At any time this Declaration may be amended by an instrument in writing, executed by the then Lot Owners of more than fifty percent (50%) of the Lots in the Project.  Any amendment approved pursuant to this Section 10.4 of this Declaration shall be signed by the President of the Association and shall become effective upon recordation of the same with the County Recorder of Maricopa County, Arizona. Any such amendment shall certify that the amendment has been approved as required by this Section 10.4.

 

But, when it comes to approving special assessments (Section 7.5 of the CC&Rs), which could be almost any amount like the assessments to pay off an $8.5 million loan for a suspect administrative building in 2007, the rewrite allows for a 25% approval of any special assessment. (The prior 1987 CC&Rs required a majority ratification of the special assessment by all the members).  The point that I wish to make is that the special assessment rewrite is only one example of how minority control fails to protect the homeowner.

Another example is the attorney self-interest covenant, 10.2, Administrative Law Proceedings, which states in part,

In the event the Association is required to incur any expense, including attorneys’ fees and costs, as a result of the direct or indirect actions of any Owner, the Association shall be entitled to recover all such expenses incurred, including all attorneys’ fees and costs, against the applicable Owner, regardless of whether formal proceedings are actually filed, pursued or awarded . . . .

 The public policy of the State of Arizona was made clear in 2006 when ALJs were permitted to hear HOA disputes, and no attorney fees were allowed to be awarded in these hearings. The CAI attorneys managed to have the law declared unconstitutional, which resulted in a reaffirmation of the legislative intent in 2011 to provide for ALJ adjudication without attorney fee.  The intent of the legislature was explicitly stated in the new bill.

 The inclusion of section 10.2 in the Apache Wells CC&Rs rewrite can only be viewed as another intentional slap at Arizona public policy, and one in the best interests of the HOA hired-hand attorney.  The covenant for minority approval of special assessments, given the history of special assessments at Apache Wells, is another act of bad faith and disregard for public policy. 

 The recourse to CC&R amendment rewrites with the reality of the apathy affliction so prevalent in HOA-Land is a devise to circumvent public policy in order to achieve goals and objectives not in the best interests of the homeowner.  The Restatement of Property: Servitudes, Section 3.1, Validity of Servitudes,    “A servitude [covenant running with the land] . . . is valid unless it is illegal or unconstitutional or violates public policy.”  It is only the acts and actions of the people within HOAs that can return them to the American way of life.

 Read the related Commentary, Why do people harm others in HOAs?