HOA constitutionality will cause the collapse of CAI

Ever wonder why CAI so vehemently fights the view that HOAs are indeed mini-governments, or quasi-governments?  Its amicus curiae brief in Dublirer v. 200 Linwood Avenue[1]  is a meritless, desperate attempt to prevent the NJ Supreme Court from coming to the conclusion that as a government, the HOA election process must be constitutionally protected.  It failed. The Court upheld constitutional rights to a member’s free speech especially in regard to HOA campaigning.

CAI argued that HOAs are businesses and that business owners don’t have constitutional protections.  It practically begged the Court not to allow open public discussions of political issues, because the HOA would lose its privacy rights. Isolationist mentality!  It argued that constitutional protections are not needed because other mechanisms, like the business judgment rule, would handle disputes.  And, that election rights are not protected by the state constitution, but by the pro-HOA statutes and adhesion CC&R contracts.  To paraphrase a line from the movie, The Treasure of the Sierra Madre, We don’t need no stinkin’ constitutional protections!

Such statements made in court filings are astonishing!  It is a complete refutation and about face to CAI’s propaganda material made for public consumption.[2]  It repudiates our democratic system of government and the US Constitution!

What would cause CAI to argue such statements without merit before a state supreme court?  Maybe because CAI knows that if HOA constitutionality is accepted and HOAs are seen as state actors or made to become state entities, it would no longer control and dominate the industry.  All would be lost!

HOAs would not be lost as CAI has argued from time to time.  CAI would be lost!  It would have to rethink its public policies, its Best Practices, it training seminars, etc.  It would need to include such courses, which are not and never have been in the CAI vocabulary, understanding the Constitution and Bill of Rights, good local government, best city management practices, etc.

The path to substantive HOA reform legislation has always been on the basis fundamental principles, democratic principles of government, and the US Constitution.  The courts are beginning to see the error of their way.  And CAI cannot prevent the inevitable from happening — it’s just a matter of how soon!

References

1.    See CAI: the HOA form of government is independent of the US Constitution.

2.    See Misrepresentation: CAI comes with unclean hands and Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

Published in: on December 15, 2014 at 4:24 pm  Leave a Comment  
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From NJ Supreme Court Twin Rivers to Dublirer: HOAs are separate but unequal governments

In a parallel that can be made with Plessy v. Ferguson (163 U.S. 537,1896) and its enlightened reversal in Brown v. Bd of Education (347 U.S. 483,1954), the NJ Supreme Court’s opinion in Dublirer v. 2000 Linwood Avenue Owners (2014) accomplished the same necessary correction of its earlier opinion in CBTW v. Twin Rivers (929 A.2d 1060, 2007) with respect to HOA constitutionality.

In Plessy, the “separate but equal” doctrine was developed to uphold segregationist laws. In Brown, it was successfully argued that “separate but equal” did not apply to the education of black children and integrated schools were necessary.

(I have read the court filings and briefs in the following cases thanks to the people at the Rutgers Constitutional Litigation Clinic, Frank Askin, Director).

In Twin Rivers, addressing the one issue of many dealing with the equivalent of separate but equal free speech for HOA members, the Court found that alternate means of member free speech was available – that is, the alternate methods were separate but equal – and upheld the constitutionality of the HOA’s restrictions.  The HOA was not open to the public and was entirely a private entity and not a municipality (factual statement).

The trial court favored the HOA, while the appellate court favored the members. “In a published opinion, the Appellate Division reversed the trial court, holding that the Association was subject to state constitutional standards with respect to its internal rules and regulations.”

At the NJ Supreme Court,

Plaintiffs [homeowners] asserted that the community room policy denied them equal protection of the laws and unreasonably and unconstitutionally violated their right to access the community room on a fair and equitable basis. They sought temporary and permanent injunctions “to allow [p]laintiffs to utilize the community room in the same manner as other similarly situated entities.

They urge that political speech is entitled to heightened protection and that they should have the right to post political signs beyond the Association’s restricted sign policy. Plaintiffs further contend that the excessive fees charged for the use of the community room are not reasonably related to the actual costs incurred by the Association. Finally, plaintiffs claim that the State Constitution requires that the Association publish plaintiffs’ views on an equal basis with which the Association’s views are published in its newspaper.

The NJ Supreme Court held,

We conclude that the limited nature of the public’s invitation to use the property does not favor a finding that the Association’s rules and regulations violated plaintiffs’ constitutional rights.

We find that the minor restrictions on plaintiffs’ expressional activities are not unreasonable or oppressive, and the Association is not acting as a municipality.

In Dublirer,

The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.

So we see how the NJ Supreme Court recognized the de facto political government nature of HOAs, representing a shift in attitude from ‘HOAs are just businesses’ agreed to by its members to the need for constitutional protections. The Court essentially declared that the HOA’s restrictions in regard to campaigning were not separate but equal methods as used by the board itself.  Further, it appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.

To ensure that local community government works for the member-owners, shouldn’t due process protections and the equal protection of the laws under the 14th Amendment require judicial support and enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

NJ Supreme Court upholds constitution against HOA free speech electioneering violations

Those familiar with rogue HOAs have seen this occur time after time – board control of the electioneering process.   In, Dublirer, a NJ Supreme Court case, [1]

The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.”

Finally, a state supreme court said enough is enough and free speech in elections for members dominates the governing documents, and the state constitution prevails (This case was not filed under federal laws).

Under that approach, we find that the Board’s policy violates the free speech clause of the State Constitution. The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns. We therefore affirm the judgment of the Appellate Division.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.”

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values.

Essentially, members – and speaking with respect to member-owners — must be given equal access to the membership as long as the campaign does not excessively disrupt the “tranquility” of the community. Suitable means must be given to members to allow for free speech expressions. The HOA had argued, beyond technicalities that were dismissed, that members had no free speech rights.  Imagine that!  CAI’s description of HOAs as democracies was just contradicted!

The Court held,

“On balance, we find that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s right to free speech outweighs the Board’s concerns about the use of the apartment building. We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.”

It appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.  To ensure that local community government works for the member-owners, don’t due process protections and the equal protection of the laws under the 14th Amendment require judicial enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

As for CAI’s amicus brief, it denied free speech rights to homeowners, declared HOAs are businesses and members are like stockholders during board elections, and other non-constitutional methods were available so forget about applying constitutional law.  Sounds like a belief that HOAs are indeed independent principalities (See Establishing the New America: a new book).

CAI cannot allow HOAs to be treated as equivalent to state entities.  See Commentary posted here.

Note 1.  “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).

CAI: the HOA form of government is independent of the US Constitution

In its amicus brief in the NJ Supreme Court Dublirer case [1] involving free speech in an HOA election campaign, CAI clearly makes the point that HOAs are not subject to constitutional protections and elections processes are covered solely by the HOA governing documents.

These rights of members do not arise from the State Constitution but rather from statutes, contract, the association’s and governing board’s fiduciary duties, public policy and fundamental fairness.

In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.

What CAI is saying is that the pro-HOA statutes that it helped write and the adhesion contracts executed under misrepresentation [2] supersede the protections of constitutional law.

Furthermore, CAI attempts a strenuous argument of “the sky is falling” if free speech was allowed in private HOA communities, which would doom the essential private nature of HOAs.

CAI-NJ’s concern is the attempt to convert private communities into constitutional actors and to open such communities to access not only to speakers from within the community but also to the public, while ignoring contractual agreements and non-constitutional protections.

This case did not deal with outside speakers, but a member running for office and seeking equal access to the membership. CAI then raises another of its favorite “cause celebres” — HOAs are businesses.  Read this fantastic argument:

The relationship between the plaintiff and the defendants here is that of a business corporation and so is similar to that involved in any other business corporation. A shareholder who wishes to run for a position on a corporate board has no right to post campaign signs on the corporation’s property. Moreover, if such a shareholder wishes to distribute campaign literature to the other shareholders before the issuance of the corporation’s annual meeting announcement and proxy, such shareholder must do so at his own expense. Dublirer’s position vis a vis the cooperative here is no different. He has no constitutional right to distribute his campaign materials within the cooperative’s property simply because mailing them to the other tenant/shareholders may cost him money”.

This in the trenches argument stands in stark contrast to CAI’s propaganda statements made for public consumption that HOAs are democratic and represent the best town hall democracy in America.  If HOAs are businesses, why is the term ‘community” used rather than “cooperative”? For example, like “building vibrant, harmonious, competent cooperatives.”

And finally, CAI makes its last ditch appeal that there are other non-constitutional protections for HOA members so the court need not introduce the Constitution into HOA-Land.  Let them remain independent principalities where hired-hand stakeholders like CAI can control and dominate.

This is CAI’s most fearful event of all, that the courts will hold HOAs as constitutional actors or state entities and subject HOAs to the 14th Amendment protections.  This state of affairs would be the death knell not of HOAs, but of the need for CAI itself.  And CAI well knows and fears this eventual outcome.

These views by CAI before the courts and not propaganda for public consumption must be made known to the media and to all state legislatures and legislators.  Then the legislators must be asked where they stand? Behind the Constitution or behind CAI?

Notes

  1. BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).
  2. Misrepresentation: CAI comes with unclean hands.
Published in: on December 10, 2014 at 12:08 pm  Comments (2)  
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Pres. Obama fails to support his People, and his fellow Americans

We need new leadership and statesmen in Washington and in state legislatures to deal with the special interest domination of HOA legislation that is detrimental to those living in HOAs, and detrimental to the  foundations of our democratic system of government. We need people who are not afraid to stand up and take a position that they know is right and just against a system that is dominated by the special interest HOA stakeholders.

Obama had the opportunity to speak up for his People who maintain that a bias exists by the courts and police toward Blacks.  He missed his opportunity to lead by stating that he thought the Ferguson decision was wrong and was going to issue an executive order to investigate the Brown murder and procedure used in the grand jury process.

He is no leader, not like Teddy Roosevelt or Franklin Roosevelt who used executive action to advance causes that they truly believed in; causes that they stood up and defended vehemently against strong opposition and criticism.[1]   He does not rise to the level of the Roosevelts.  He failed to back his People, the people who brought him to power and who supported him in his presidency.

Rather, Obama comes before the camera, the people and his People, listless, flat, unemotional, lacking passion, and lacking the audacity to change.  Looking forlorn and wishing that he was not there.

He is a failure as a President. He is basically incompetent and should reign for the good of the country and for the good of all Americans.

Where are the statesmen who are not afraid to stand up and take a position that they know is right and just against a system that is dominated by the special interest HOA stakeholders.

Note 1.  See the PBS special The Roosevelts: An Intimate History.

Published in: on November 26, 2014 at 4:06 pm  Comments (4)  
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