Tag: public forum

Do you stand behind the US Constitution or your HOA ‘constitution’?

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.

Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.  It has passed put of committee and Caucus.

This important bill has been sitting for an extended 2 week time awaiting the House leadership to schedule it for a full House vote of all the members. NOT A GOOD SIGN!  My years of experience lead me to believe it does not have the support of the leadershp that has the right, under House Rules,  to withhold bills from further votes.

HB 2158 (2022). You can read the bill at the legislature’s website. Read the important amendments below. This is your chance to stand up for constitutional protections against the CAI lobbyists, many whose members have been or are SCG directors – conflict of interest!

“L. Notwithstanding any provision in the community documents, an associociation [sic] may not prohibit or unreasonably restrict a member’s ability to peacefully assemble and use private or common areas of the planned community . . . . An individual member or group of members may organize to discuss or address planned community business, including board elections or recalls, potential or actual ballot issues or revisions to the community documents . . . . The association shall not restrict posting notices of these informal member meetings on physical or electronic bulletin boards used by the association for posting notices for the association’s or board of director’s official meetings.”

This bill has support from the Nevada Supreme Court opinion in Kosor (NV supreme court upholds HOAs as public forums (re: Kosor 2021)) that contained several California opinions serving as legal precedent.

 “[A] unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community . . . legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel.”

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.”

“The HOA here is no less of ‘a quasi-government entity’

* * * *

The following is an excerpt from a lengthy email sent to me by a long time AZ homeowner rights advocate, Dennis Legere. It and his email are made public with Dennis’ permisssion.  It  reveals the obstacles an hostiity he faces trying the get HOA reform legislation to restore lost rights and freedoms. It contains his comments on the heavy opposition  from CAI and AACM (AZ managers association, CAI trained).

“The ridiculous nature and hidden motivation of the HOA trade groups [CAI and AACM] is what makes any HOA meaningful legislation so difficult to get introduced or protected from demands from the trade groups for provisions that benefit them only.”

Take back controll of your HOA!  Write your Representative in support of this bill. Also write the sponsor, Jack Kavanagh (jkavanagh@azleg.gov) and the House leaders in support of this bill urging that it be submitted for a hearing by all the House members. Do it today!

House leaders:

Rbowers@azleg.gov – Speaker (R)

tgrantham@azleg.gov – Speaker Pro Temp (R)

btoma@azleg.gov – Majority Leader (R)

lbiasiucci@azleg.gov – Majority Whip (R)

rbolding@azleg.gov – Minority Leader (D)

ddegrazia@azleg.gov – Minority Whip (D)

jlongdon@azleg.gov – Asst Minortiy Whip (D)

HOAs against protected member speech on social media

In contrast to the authoritative evidence supporting free speech for HOA members criticizing their BODs, the Tinnelly Law firm blog states up front in big letters, “HOA LAWYER BLOG.”  As for the content, the following quote sums up the view of the Tinnellys.

“The lack of regulation on social media communications can cause neighborhood tensions and smear the reputation of a community, causing a negative effect on property values.  This has led many homeowners associations to develop protocols and guidelines with regard to social media. “

(Some research shows Tinnelly is solid CAI with the owners, Richard and Stephen Tinnelly as members, as well as Director Acosta and article attribution to lawyer Kim.)

Read the full 4-page paper at social media free speech

In Kosor the NV appellate court upholds HOAs as public forums

In January of this year I posted the Nevada Supreme Court’s opinion on HOAs as public forums and the president as a limited-purpose public figure (NV supreme court upholds HOAs as public forums).  Last month on an appeal (Olympia v. Kosor, No. A-17-765257-C (Nev. Ct. App. 2021) from the remand, to  let the trial court hear the case on above issues, the appellate Court upheld the supreme courts findings and opinion.

The tremendous constitutional question of free political speech on issues of HOA governance was upheld. Finally! In doing so, the Court also held, citing several cases that [note 1],

  • [the HOA]  “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”
  • the Nevada Supreme Court has found the [the HOA] Board to be in the nature of a quasi-government entity largely paralleling the powers, duties, and responsibilities of a municipal entity and its meetings similar in function to a governmental body.
  • homeowners’ associations open meetings are public forums as such associations play ’a critical role in making and enforcing rules affecting the daily lives of [community] residents.’”  
  • “the HOA meetings at which Kosor made certain of the statements at issue were ‘public forums’ … because the meetings were ‘open to all interested parties, and … a place where members could communicate their ideas. Further, the…meetings served a function similar to that of a governmental body.”
  • In deciding this Motion, this Court also concludes Plaintiffs at least constitute limited-purpose public figures.
  • The test for determining whether someone is a limited public figure includes examining whether a person’s role in a matter of public concern is voluntary and prominent.” [as is the case with HOA boards and presidents]
  • the issues Defendant raised involve efforts to encourage homeowner participation in and oversight of the governance of Southern Highlands, “an inherently political question of vital importance to each individual and to the community as a whole.”

. . . .

Your HOA cannot stop your free speech if you argue Kosor! Just be careful about making harsh, accusatory statements that violate elements of defamation that will  defeat your free speech.

NOTE 1. Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205, 214 (2000); Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209, 214 (1983); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 91 (2002).

The writing is on the wall for HOA reforms

Although the Arizona Supreme Court has not yet decided to hear Tarter v. Bend (CV 21-0049), my 44 page Pro Se amicus curiae brief is a matter of public record, regardless.  The case about a defamation suit by the HOA president, also an attorney and a limited-purpose public figure, raised constitutional issues of public speech with respect to questions of HOA governance. 

Selected excerpts follow.

As with the issue in Dombey (Dombey v. Phoenix Newspapers, Inc) . . . failing to present the question of Tarter’s status as a possible public figure denied the jury from considering the issues of protected free speech on public issues.

Kosor (NV) was sued on the basis of his criticism  and distribution of a pamphlet and letter at a board meeting seeking a seat on the board of directors.

“Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.”

The impetus behind this view can be laid to the heavy lobbying of state legislators, judges, the public and the media by the Community Associations Institute (CAI). From its 2016 white paper,

“Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. . . . Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement.”

In response to my Arizona Supreme Court pro se amicus brief in Gelb v. DFBLS (CV-10-0371-PR) CAI attorney Jason Smith wrote,

“It is clear from the that the amicus curiae [referring to me] simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”

[I called to the Court’s attention a question of a SLAPP lawsuit against Brendt.]  The issue of an HOA SLAPP lawsuit against a member is in the interest of general public and of statewide importance, and also of national concern, the impact on community associations is certainly substantial. This Court should, sua sponte, consider Tarter’s legal action as a HOA politically motivated strategic lawsuit  against member participation.

I urge the Court to apply the long overdue correction  of  Plessy v. Ferguson by Brown v. Bd of Education to the long overdue and needed corrections to the unconstitutional HOA legal scheme.  As with Brown, America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. 

How legislative Rules committees abort democratic HOA reform bills

In the interest of public education on the functioning of state legislatures, this paper presents information on the rules governing state legislatures — using Arizona as a representative example — that affect passing bills into law.  I focus on the Rules committee’s powers to obstruct the voice of the people, and how it can prevent — kill — HOA reform bills by the actions of the political party leaders.

The powers of the Rules committee are undemocratic and authoritarian  in nature designed to thwart, apparently, the folly of the voice of the people.  We see the same undemocratic, authoritarian powers granted to HOA boards to an even greater extent,  The national lobbying group’s promotion of the “business judgment rule,” and acceptance by the courts, is a prime example.[1]

Exhibit 1 details the Rules powers that can prevent HOA reform bills, and any other bill not liked by the powers that be, from a hearing and vote by the full chamber — by the people’s representatives. As I wrote earlier[2], Arizona’s HB 2052, a bill that has in reality been killed in the Rules committee after unanimous approval by the House and Senate government committees, is a prime example of this misuse of authority.

The Senate Fact Sheet “intro” paragraph misrepresents the content of the bill:

“Expands statutory restrictions on condominium unit owners’ association and planned community association (HOA) regulation of political signs to include signs related to certain community activity. Prohibits an HOA from prohibiting door-to-door community activity”.

Of the 8 listed “Provisions,” 2 are technical, 2 relate to political signs, and 4 — given a short sentence in the “intro” —  expand on HOA restrictions and prohibition’s protecting free political speech and expression, in the HOA public forum,[3] as curtained in my earlier “Senate Protects” posting.[4]

. . . .

The Arizona Legislature, and each and every state legislature, is  not a sovereign that can do no wrong, but has duties and obligations sworn to under oath “to establish justice . . . and secure the blessings of liberty” for the people of its state. It cannot demand respect but must earn it through good deeds.  Passing HB 2052 into law would be a sign of good faith that would earn the respect of the people.

Exhibit 1.  Arizona Legislative Council publications

“In the Senate, bills are usually not “held” in the Rules Committee for partisan or political purposes; bills which go into the Rules Committee are almost always reported out. In the House, the Chairman of the Rules Committee can “hold” (read “kill”) a bill simply by not giving it a hearing. (p. 52).

“The options of the committee chairman are a) Hear the bill and vote on it, b) Hear the bill but take no action, c) Assign the bill to subcommittee, d) Not hear the bill.  (p. 39-40).”

“The Role of the Rules Committee,”  State Senator Randall Gnant, From Idea to Bill to Law (2000). (As of April 2021).

“Each measure is assigned to the Rules Committee of the house through which it is progressing . . . . The Rules Committees assess the constitutionality of the proposed legislation. Unless they are withdrawn or discharged, all bills must pass the Rules Committee before they are heard on the floor. (p.41-42).

“An Active Calendar of the Committee of the Whole (so called in both houses) consisting of bills the Speaker or President selects for consideration by the respective Committee of the Whole (COW).

“A calendar consisting of all bills and other measures that have been reported from the committees. In the House this is called the “House Calendar.”  In the Senate it is called the “Calendar of the Committee of the Whole.” These calendars are simply a list of bills and other measures that are ready for further action by the full chamber.” (p.42-43).

Arizona Legislative Manual 2003 Edition, Arizona Legislative Council (2003). (As of April 2021).

Notes

[1] See, Reorienting the HOA board: business judgment rule (2020).

[2] See, AZ Senate protects HOA misconduct rejecting HB 2052; Arizona HB 2052 restores homeowner constitutional speech protections.

[3] See court holdings: Calif. holds HOA elections as protected free speech public elections (2019); NV supreme court upholds HOAs as public forums (2021).

[4] Supra n. 2, AZ Senate Protects.