I let the Arizona Legislature know that advocates are not as stupid as they would like to believe (See Observations on AZ legislative treatment of HOA reform bills We know what is going on and has been happening for years with respect to legislative support for private government HOA regimes. HOAs that deny homeowners their rights and freedoms while imposing harsh penalties only on the members and not on the HOA boards.
The attitude of the legislatures appears to be: The HOA must survive at all costs – it’s a matter of national and state security so constitutional protections be damned.
A leading Texas advocate has added to this exposure of legislative cooperation, support, and coercion to permit HOAs to rule without accountability. Read her Open letter.
There are 4 main constitutional issues that are continually ignored by the legislatures: clean elections procedures; due process and the equal application of the laws; ‘consent to agree’ fallacy; and that the Constitution is only about ‘no contract interference.’ These issues must be addressed and reforms instituted, but they are not addressed because the legislators well know that they are defending the indefensible if they speak out.
It falls to the true advocates for HOA reform to have the courage to speak out about the reality of the HOA legal concept. They need to set the record straight about legislation supported and promoted by the so called “stakeholders”, the vendors (read as HOA attorneys and managers) who make money from the unrepresented and truly affected class, the private property owners, the homeowners.
The current (Feb. 18, 2013) slogan on the Arizona CAI chapter website reads, “Creating Better Communities Through HOA’s”. I find this statement to be entirely incredulous! It dismisses the reality of an authoritarian regime that denies due process and the equal protection of the laws to homeowners. It asserts that kangaroo courts; the absence of fair elections processes; and a consent to the waiver and surrender of rights by the by simple filing of CC&Rs with the county without explicit, written agreement by homeowners all create better communities.
Such an attitude by pro-HOA lobbyist organizations is the primary cause that creates not better communities, but dysfunctional communities. And from attorneys who proclaim to be experts on HOAs, but who clearly are ignorant of constitutional law. (A leader of the AZ chapter is now president of CAI’s “best and brightest” lawyers group, CCAL). With the rapid growth of HOAs across the country, supported and encouraged by the state legislatures in all states, the HOA legal structure reflects values of the greater dysfunctional society that is becoming The New America of HOA-Land.
The values, philosophies and standards of democracy set forth in America’s organic law — the Constitution, the Bill of Rights, the Articles of Confederation and The Northwest Ordinance of 1787 — are rapidly becoming a myth, but are still being taught in our public schools and misleading the people of America.
Our elected representatives must restore our communities and society to those fundamental principles supporting our democratic system. And that can be now with those HOA reforms bills now before your state legislature.
The legal doctrine of Monell claims appears to be suited for those instances where public policy permits violations of constitutional rights under 42 US 1983, “Civil action for deprivation of rights”.[i]These claims can pertain to police departments and county attorneys, planning boards, and real estate departments and other HOA commissioners or ombudsmen officials if they have adopted such a policy. In other words, if it is the policy of a planning board, or the police department and/or county attorney to ignore or dismiss legitimate complaints against HOAs then this policy allows for the application of civil rights protection under federal law.
In Nevada, Bob Frank and Tim Stebbins have filed such a federal claim[ii] against Henderson Police Department for false arrest and malicious prosecution relating to their whistle-blowing, which involved IRS rules violations relating to tax refunds to HOAs. Without probable cause and an independent audit, the police arrested the two homeowners under filing a false claim. Subsequent to their arrest, the IRS completed its audit that did indeed substantiate the allegations of Frank and Stebbins.
Basically, a Monell Claim involves a claim “against a government unit [with] sufficient facts to show (1)the existence of a government policy or custom and (2)that the unconstitutional act was taken pursuant to that policy or custom.”[iii] Further clarification of what constitutes “policy” was provided in Pembaurv. City of Cincinnati[iv] decision that held, among other things,
“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”
In other words, the policy or custom must come from a high-level official who can be said to speak for the agency, and thus the municipality. For example, Commissioners and Directors who are permitted to set rules and regulations by law. Any such rule, especially an explicit policy statement, may lead to a Monell Claim. For example, in Pembaur the Prosecutor was held to be the final authority when he told the police to break into a business without a warrant. In Frank, it is shown that the Police Chief and Municipal Judge approved the probable cause claim for the criminal arrest warrant. See this link for current documents in this case.
When the “unspoken alliance of no negatives about HOAs” becomes incorporated into an agency policy, then Monell Claims may arise.
Notes
[i] “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected to . . . the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . .” (emphasis added).
[ii]Frank v. City of Cincinnati, 2:12-cv-01988-GMN-GFW (D. Nev.) (not decided).
“We are not final because we are infallible,
but we are infallible because we are final.”[i]
This Commentary excerpts relevant arguments from the court’s opinion in Poris v. Lake Holiday[ii] relating to police powers and false imprisonment. I find it necessary to use excerpts so you, the reader, can follow the issues and analysis as they actually occurred before the court. I believe this is the best way to understand public policy and how the laws are interpreted by the HOA attorneys and courts. Please read through this lengthy commentary, and discuss with others.
FIRST, let’s look at the analysis of the appellate court’s finding that the stopping of the member for an HOA rule violation was unlawful. The appellate court held,
“Specifically, plaintiff [homeowner] argued that: the Association was not authorized by law to stop vehicles and detain drivers;
“[S]ecurity guards occupy the same status as private citizens.
“[HOA] security officers were attempting to assert police powers that they had neither the right nor the power to assert. [my emphasis].
“Because [the HOA] restrained plaintiff for violating an Association rule, not a criminal law, plaintiff established the elements necessary for his false imprisonment claim.”
It is important to understand the detailed reasoning as to why the HOA had no powers to arrest was given:
“The appellate court concluded that security officers are without legal authority to stop and detain drivers for violating Association rules, because those rules are enacted by the Association, not the General Assembly, and therefore do not constitute an ’offense’ . . . .”
NOW, let’s see how the 7 wise men of the Illinois Supreme Court saw the law.
Police powers.
“Plaintiff contends that only the Illinois legislature has the authority to create a private or public police department. . . . Plaintiff and the appellate court err in viewing this issue as one involving private citizens improperly attempting to assert police powers. . . . The appellate court failed to consider the Association’s enforcement of its rules and regulations in the context of its authority as a voluntary association to enact and enforce those rules and regulations.
“[Since] courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion or arbitrariness. . . . plaintiff generally complains that the Association was unlawfully exercising police powers and authority . . . . However, plaintiff does not, and cannot, argue that the Association and its security officer did not act consistently with its bylaws, or its rules and regulations . . . . ¶
”Plaintiff also argues that the Association is exceeding the legislative powers granted to not for profit homeowner’s associations in enacting and enforcing its traffic rules. . . . each corporation shall “have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is formed.” [IL statute]. . . . Regulating and enforcing traffic rules is reasonably necessary to maintain the Lake Holiday roadways.
¶
“The Association rules and regulations were enforced only on Association property, and citations for violations of the rules and regulations were only issued to Association members. Consequently, the Association was not unlawfully exercising police powers that it did not possess, but rather was acting within its authority as a voluntary association to adopt and enforce its own rules and regulations.
“We can discern no logic in allowing a private homeowners association to construct and maintain private roadways, but not allowing the association to implement and enforce traffic laws on those roadways.”
And finally, false imprisonment.
“[T]he appellate court erred in analyzing [the HOA’s] stop of plaintiff in terms of a private citizen effecting a citizen’s arrest, rather than analyzing the stop as pursuant to Association rules and regulations. . . . These facts would lead a person . . . to believe or entertain a strong and honest suspicion that plaintiff was guilty of violating Association rules. Consequently, [the HOA] had probable cause to believe that an offense was committed by plaintiff, which is an absolute bar to plaintiff’s claim for false imprisonment. [my emphasis].”
My perspective
In Poris we have another instance of a state supreme court holding private contracts superior to the Constitution (See NJ supreme court opinion in Twin Rivers[iii]). Apparently, the only thing that the Constitution has to say is an absolute “no contract interference.” Note how the court adopted a narrow reading of the laws as it parsed and examined the precise wording of the laws, not stepping back in its alleged legal wisdom seeing only the trees and not the ugly forest.
The court cleverly ignored the question of detaining non-members, and the question of public streets.
Think of the implication that a non-profit, any non-profit, can enforce its rules even by detain and arresting its member. And think of the impact on the US Supreme Court question, and Arizona laws (SB 1070), dealing with similar issues of detention, probable cause, and reasonable suspicion by police officers to demand “your papers” to uncover illegal immigrants.
I can summarize the Illinois opinion with the simple statement by William Pitt, part of which appears on the façade of the Arizona Supreme Court building:
Unlimited power is apt to corrupt the minds of those who possess it: and this I know, my lords, that where law ends, tyranny begins!”[iv]
[i] Justice Robert Jackson, Brown v. Allen, 334 US 443 (1953). (Robert H. Jackson was also US Attorney General and chief US prosecutor at the Nuremberg Trials).
[ii]Poris v. Lake Holiday, 2013 IL 113907 (Jan. 25, 2012). (It should be noted that I cannot find any record of the amicus curiae for the HOA, an Illinois Association of Lake Communities).
[iii]Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060 (NJ 2007).
[iv] This statement was made by Lord Chatham (William Pitt) to the British House of Lords in January 1770.
When state legislators allow private government HOAs to be unaccountable to state laws as required by all other government entities, then an attitude that anything goes develops. Why? Because there are no penalties to serve as a check and balance on HOA activities. It creates a lawless attitude of, “Go for it, what do you have to lose?” It creates a dysfunctional society.
It is commonly known that state legislators have a blind adherence to the false belief that HOAs do no wrong, and that there is no need for HOA penalties to serve as detriments to intentional and willful violations of the laws. State legislators continue to believe that homeowners are openly and fully informed when accepting a deed binding them to an unsigned contract; and that the HOA and its special interest attorney national organization are acting in good faith.
State legislators continue to believe that the HOAs and their hired hands, the management firms and attorneys, will comply with both the letter and intent of state laws, rather than seeking loopholes for income producing court cases. Such dogmatic beliefs have created a dysfunctional society operating outside constitutional government under a second set of laws just for HOA subdivisions.
Ask yourself why do towing companies roam the streets towing cars in private communities without obeying the laws, or without getting a complaint from the HOA? BECAUSE they can and because the HOA really doesn’t care — its rules are being enforced by someone else. And there are no penalties against HOA boards violating their own governing documents. The HOA is the sovereign, and it can do no wrong!
However, there is hope. An indication of a return to sanity comes from the Republican Party’s realization that its obsessive adherence to dogmatic principles of laissez-faire corporatism has been a failure. (HOAs are a prime example of corporatism in operation in America). Republicans are beginning to think in terms of less dogma but a more principled “protecting private property,” always a fundamental principle of this country. It stands in opposition to socialist states operating for the benefit of the corporation and not for the rights of the people.
State legislators should take heed. They have created a dysfunctional society with their unreasonable and irrational support of authoritarian HOA regimes. It’s well beyond time for an awakening, enlightenment, in their views of authoritarian HOA private regimes.
HOA Constitutional Government 