Tag: supreme court

Can municipal agencies be liable under Monell Claims for policies that support HOAs? YES!

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 Pembaur v. 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).

[iii] Supra, note i.

[iv] Pembaur v. City of Cincinnati, 106 S.Ct. 1292 (1986).

Corporatism in America: IL Supreme Court grants HOA police powers to arrest and detain

see-no-evilS
See no evil, hear no evil, speak no evil

“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]

 For more on corporatism, see In a democracy approaching corporatism, HOAs are iconic 

Endnotes

[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.

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

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

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 serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

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.  Consider the following:

1.      “A rose by any other name is a rose.”  Taxes are HOA assessments; ordinances are rules and regulations; board is the legislature/city council; government agency is architectural control committee (ACC); citizens are members; judiciary is board/ACC; constitution is the CC&Rs; laws are the by-laws; etc.

2.      State legislatures have not enacted laws that delegate their legislative functions to the HOA private entities with oversight or constitutional compliance, as required by long standing legal doctrine. 

 [i]t is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control. . . .The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified.[i]

 3.      Furthermore, “Agreements violating constitutional provisions, county codes, and municipal ordinances are illegal to the same extent as agreements violating statutory enactments.”[ii]

4.      For those states with “home rule” laws that permit a wide range of independent law-making at the local level, the governing body remains subject to the constitution and laws of the state. 

5.      Attempts to enumerate the specific functions of an entity, which are unique to political governments and make them a government and not something else, like the archaic public functions test of 1946,[iii] fail as being contrary to constitutional law.  Compare these questionable definitive “public” functions to the legal requirements set forth in the laws of each state applicable to municipal governments.

6.      The unique factor that determines the broad concept of “government” is simply:  any governing body that controls and regulates the people within a territory is a de facto government. Take Cuba for instance, a de facto yet unrecognized government. Sadly, HOAs are not recognized either.

Modern states are territorial, their governments exercise control over persons and things within their frontiers. . . . A state should not be confused with the whole community of persons living on its territory [such as churches or corporations].[iv] 

7.      Several political scientists believe that HOAs should be declared as sui generis (one of a kind) private governments.  However, evidence based on existing HOA state laws have made HOAs an “arm of the government” (state actors) according to the US Supreme Court criteria:[v]   state protective statutes reflecting a cooperation with HOAs, through state support or coercion; by a symbiotic relationship, close nexus, or an entwinement between the state and the HOA.

In general, every special or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity for such discrimination, is unconstitutional and void.[vi]

8.      Defining HOAs as a sui generis entity without the requirement that HOAs are indeed bodies politic or state entities rejects the US Constitution. HOAs have seceded from the Union by virtue of their private contracts that do not hold the HOA governing body subject to the laws of the land. 

9.      CC&Rs are created by private parties, none being an actual member or resident of the subdivision at the time of formation, who enter into contractual arrangements that have been described by the courts as the HOA’s “constitution.”  The CC&Rs serve to regulate and control the people within a territory (an HOA), thereby circumventing the application of the Constitution and, specifically, the 14th Amendment equal application of the laws and due process protections. 

A statute infringes the constitutional guarantee of equal protection if it singles out for discriminatory legislation particular individuals not forming an appropriate class and imposes on them burdens or obligations or subjects them to rules from which others are exempt.[vii]

In order for a waiver of a constitutional right to be valid, it must be made voluntarily, intelligently, and knowingly and with sufficient awareness of the relevant circumstances and likely consequences.[viii]

 10.  The persistent and profuse arguments, by the HOA special interests, that HOAs are not governments can easily be seen as attempts to avoid HOAs being subject to constitutional conditions and restrictions that protect the people.  “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . .”[ix]

 

Further readings

Commentaries:                               

1.       The Legitimacy of HOA Governance

2.       AARP Amicus Curiae brief in Twin Rivers NJ constitutionality suit

3.       The Constitutionality of state protected homeowners associations

4.       Why haven’t the 1983 HOA problems of America II been resolved?

5.       HOA Case History: state actors or mini/quasi government

 

General reading:

1.       Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie, Urban Institute Press, 2011.

2.       Establishing the New America of Independent HOA Principalities, George K. Staropoli, Starman Publishing, 2008 (ISBN 978-0-9744488-3-1).

3.       Neighbors AT War! The Creepy Case Against Your Homeowners Association, Ward Lucas, Hogback Publishing, 2012.

4.       Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Evan McKenzie, Yale Univ. Press, 1994.

5.       Villa Appalling! Destroying the Myth of Affordable Community Living, Donie Vanitzian, Villa Appalling Publishing, 2002.

                                               

Legal Authority Notes:

[i]    Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (2002).

[ii]   17A Corpus Juris Secundum Contracts § 213.

[iii]  Marsh v. Alabama, 326 US 501 (1946); Shelly v. Kraemer, 334 US 1 (1948).

[iv]  “State,” Black’s Law Dictionary, 7th Ed.

[v]    Brentwood v. Tennessee School, 531 US 288 (2001).

[vi] 16B American Jurisprudence 2d Constitutional Law § 874.

[vii]  16B American Jurisprudence 2d Constitutional Law § 871.

[viii]  16 Corpus Juris Secundum Constitutional Law § 82.

[ix]   Community Associations Institute (CAI) amicus curiae to NJ Appellate Court in CBTR v. Twin Rivers HOA, 890 A.2d 947 (2004).

CAI attorney appeals to HOAs to challenge AZ ALJ due process statutes

Arizona CAI member, and president (as of Jan. 1, 2013) of its College of Community Association Lawyers, Scott Carpenter, makes several misleading statements about the constitutionality of Arizona’s Office of Administrative Hearings adjudication of HOA disputes.  (Top 10 Legal Issues for 2013 video seminar).

Speaking of the constitutionality of the statute, Carpenters states, “We took it up to the court of appeals and the supreme court of Arizona and they said this whole process is unconstitutional.”  He appears to be speaking about the 2008 Gelb v. Casa Contenta HOA in OAH, the only one that was eventually appealed to the Arizona Supreme Court. The case was won by the HOA, but Gelb appealed to the superior court. In superior court the HOA attorney, the winner, challenged the constitutionality of the law in a case that its client had already won! What was the real purpose of the appeal? For the HOA or for CAI and Carpenter.

Allow me to clarify the events relating to Carpenter’s obsession with OAH due process for homeowners. It was the third OAH challenge by Carpenter in his attempts to shutdown OAH adjudication. The first was held to only apply to the HOA in the decision in question. The second was held to apply by a superior court default decision to all HOAs, but Carpenter needed an appellate decision in order for the unconstitutionality ruling to become precedent, binding, on all Arizona HOAs.

 While he got his appellate decision, Gelb appealed the decision to the Arizona Supreme Court.  I filed an amicus curiae brief to inform the Court of certain facts relating to the conduct of the HOA attorneys and lower court decisions.  (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process).  In spite of Carpenter’s misleading statement,the SC did not hear the appeal, but issued an order that the Gelb appellate decision of unconstitutionality was not to serve as ANY precedent, and thus not binding on future cases. Carpenter didn’t get what he wanted

                                                                                           

MINUTES No. 3161 (May 24, 2011) Arizona Supreme Court   CV-10-0371-PR

 GELB v DEPT OF FIRE BUILDING AND LIFE/SEDONA CASA

Court of Appeals Division One 1 CA-CV 09-0744

 

ORDERED: Appellant’s Petition for Review = DENIED.

FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published,

pursuant to Rule 111(g), Arizona Rules of the Supreme Court.

 

(The appellate decision shows as a MEMORANDUM).

 In regard to the OAH bill becoming law, Carpenter brazenly declares a conspiracy to pass this law saying “When the executive and legislative branch conspired together to deprive the judicial branch of their essential role . . .” Talk about a loaded statement that the sponsor, and now Senate President, Andy Biggs and Governor Brewer would love to hear, especially when Carpenter adds, “It is still unconstitutional.” This is pure one-sided opinion, an ipse dixit – no supporting arguments.

 Carpenter finally makes his real motives plain, in this video, when he encourages people to file suits to raise a constitutionality challenge to the new 2011 law. He also laments that “the whole process is contrary to HOA law” in regard to the payment of attorney fees, implying some sort of superiority of restrictive covenants over constitutional law. He fails to fully inform his audience and viewers of the fact that attorneys are not required at OAH, and that it’s the HOA’s decision to spend and pay for these unnecessary fees.

 

Supreme Court justices comment on Arizona judicial integrity

Former US Supreme Court Justice O’Connor and former Arizona Supreme Court Chief Justice McGregor speak of the outstanding integrity, impartiality and fairness of Arizona judges and on the oversight entity,  the Commission on Judicial Conduct.

In contrast, this writer presents the two incidents of unquestionable violations of judicial ethics and conduct as set forth in the Arizona Rules of the Supreme Court, Code of Judicial Conduct.

The details of the two incidents can be found at If the watchdogs of the judiciary fail, it follows that the government also fails, and The State of Arizona will not protect buyers of HOA homes!