Tag: political dynamics

Competency of judges; HOA reform policy

I offer the following commentary on  the detailed 10-page Rosie Manins’ article[1] who quotes David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.  I present relevant quotes that provide an understanding of the realities of a judge’s competency. As we well know with respect to HOA-Land lawsuits, their competency is in question as well as their difference to alleged expert opinion and dominance by CAI attorneys.

My annotations are in square brackets [ ].”

“’The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they’ll stray into troubled waters,’ said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 ‘that the transition from attorney to judge is difficult’.

“’Most of the time we’re elected or appointed as judges, and one day you’re a lawyer practicing probate law, and the next day you’re on the bench. We have this really important piece of our republic, and yet we don’t have a solid training system for preparation.’ Sachar said.

“’The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession,’ he said. ‘Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn’t appear to know what they’re doing.’”

“You can’t just wave a magic wand and say [to a newbie judge], ‘Here’s how all courts are going to do this,'” he said. “You’re stuck with ‘Hi, welcome to the judiciary. Here’s a couple of bench books. Follow the path of people you saw before you.'” [And guess who that may be?]

[As to the political side of judicial appointments,]

“’Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons’, Mann[2] said. ‘You really have to kind of narrow this down to what has the political process done to judicial selections,’ Mann said ‘Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge’ [And CAI is outspoken on its efforts to influence judges and legislators[3]]. ‘And it may be that it’s producing younger, more political judges that have less qualifications and experience to be a judge.’

It is my sincere hope that advocates will understand that HOA reform legislation is political in nature and that they are facing a powerful Evil Empire that dominates the playing field. Advocates must lose their fear and retaliate using the abundance of legal authority on their side —  case history, the existing laws, and CAI’s own words, statements and attitudes.

They must come armed before the courts to chasten and hold judges accountable for their lack of HOA knowledge and their dependency on the CAI promoted business judgment rule[4]. But the advocates must first become educated themselves.

Advocates must advocate – publicly recommend and support HOA reform policy before state legislatures, county planning boards, the media, and homebuyers at large —and not just post among themselves on social media.  Patrick Johansen, Steve Horvath, Raelene Schifano, Jim Lane, Deborah Goonan,  and  others have started programs to influence the decision-makers. I congratulate all of them.

[1] As posted by Joe Homes post in HOA Fight Club (FB), Is The State Court System Setting Judges Up To Fail? (Rosie Manins · 2023-10-27).

[2] Judge Julian Mann III, chair of the American Bar Association‘s Judicial Division and retired Administrative Law Judge. 

[3] “Community associations should build effective relationships with decision-makers—public officials at all levels of government and regulatory agencies. Association attorneys should advocate educational programs for judges and other attorneys to foster deeper understanding of the community association housing model.”  (“Public Policy Paradigms,” Community Next: 2020 and Beyond, Community Associations Institute. Notable Trustee member is Vice Chair J. David Ramsey, esq., Becker & Poliakoff pa, Morristown, NJ, who is very active in ULC and UCIOA revisions.)

[4] See in general, Business judgment rule; understanding the courts.

Political dynamics at play in HOA-Land

“In order to succeed you must accept the world as it is and rise above it”

Historians have referred to the American Revolution as the “American Experiment” because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time?  However, over the past century there has been a slow but steady erosion of the American Experiment. 

Simply stated, the following questions remain unanswered by state legislatures or HOA special interests, first asked in 2005:

  1.     Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
  2.      Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent, which serves to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

(Why Homeowners Associations (HOAs) should and must be made political subdivisions) (2012).

Failing to address these fundamental questions has permitted HOAs to exist as de facto governments functioning as a second form of political government within the US. HOAs reject the US Constitution by their actions — forget the words.  In 1964, with the publication of the Homes Association Handbook, Technical Bulletin #50, by the Urban Land Institute, and with the support and funding of private interests and federal agencies, the birth of the Second American Experiment went largely unnoticed.  

“The special interest promoters have described this second Experiment, boastfully, not as a revolution, but as “The Emergence and Acceptance of a Quiet Innovation in Housing”.  This second experiment was not a strengthening of democracy, but one that promoted and established, with the support and cooperation of the state legislatures, private, contractual, authoritarian government regimes.”

Homeowners Associations: the Second American Experiment (2008).

 

Did HOA-Land contribute to the national disregard for democratic America?

“For they have sown the wind, and they shall reap the whirlwind”  (Hosea 8:7)

In my 2020 Rogue Presidents post [1] I warned:

“I’ve come to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today?”

I am not a psychologist or sociologist but a student all my life of leadership in government, corporate, and military. Based on the events over the past 2 years —and showing no signs of abating  for the next 2 years — regarding the staunch, cult follower support of Donald Trump by Republicans at the federal and state levels, I must lean toward a national, cultural change in America. It has led to a rejection of the Constitution and all its principles and values that truly made America great.

America today is no better that the banana republics and totalitarian governments that hypocritical politicians  openly criticize. The guiding rule for politicians that was “to avoid the appearance of impropriety” has become outright lying to the face of the public, redefining the traditional meaning of words, as George Orwell portrayed in his book 1984, to advance the political views of the cultists as necessary for America’s survival.

To a lessor extent, but functioning in parallel with  the national malaise, are the private government HOAs. With the members exhibiting the same cultist conduct that the HOA president and board can do no wrong.

Further reading:

  1. Rogue presidents: Trump and HOAs  (Nov. 2020).
  2. Countrywide political culture cause of HOA reform failures (Feb. 2021).