On stopping HOA bullies and rediscovering lost values

Excerpts of guest blogs by George Staropoli on Ward Lucas’ blog, Neighbors at War!

 

Rediscovering Values

For a society, a community, to function in an orderly manner there must be not only rules, but a firm belief in the need to enforce just and fair rules and laws. Political philosophy says that where laws are unjust and unfair, then the democratic government is not legitimate, cause the reason for forming a social contract and surrendering freedoms is just that.

On Stopping Bullies

Proposed HOA reforms must include necessary and sufficient detriments to put an end to HOA bullying and abuse. People do not become angels when they become a board member, like our astute, politically savvy legislatures would like you to believe.

 If angels were to govern men, neither external nor internal controls on government would be necessary.  James Madison, The Federalist Papers, # 51.

 

 

AZ ethics chair finds no violation by Ugenti in SB 1454

See-hear-speak no evil

See-hear-speak no evil

In response to my petition[1] to the AZ Speaker of the House and House Ethics Committee to bring disciplinary action against Rep. Ugenti, I received a short, late evening response from the Ethics Committee Chair, Rep. Lovas.  The terse response amounted to “the act of offering an amendment on the floor does not rise to the level of disorderly behavior for purposes of Ethics Committee jurisdiction. . . . The Ethics Committee will not be taking the matter up further.”  This was a strict interpretation of the meaning of ethics, which under the House Rules deals only with financial issues. It says that a violation of the Arizona Constitution by an elected official is not an ethical concern.

Where ethical restraint is lacking, there can be no hope of overcoming problems. (The Dalai Lama).

 

Very much disappointed in Rep. Lovas’ response, I replied in a little more detail.

 

Rep. Lovas,

I appreciate your late evening response to my emails seeking disciplinary action against Rep. Ugenti for her conduct in submitting her waning hours amendment to SB 1454. The strict interpretation of the committee’s jurisdiction holding that Ugenti’s conduct was not “disorderly behavior for purposes of Ethics Committee jurisdiction” is disturbing. How can a violation of the law by an elected representative, a legislator, not be viewed as unethical? The bill with Ugenti’s amendment was stipulated by the Legislature (per paragraph 22 of the Stipulation) to have violated the Arizona Constitution’s prohibition against bills with more than one subject. And the court so invalidated her additions.

I am disappointed in your response. You treat this incident as “just another day at the office” and this is the way the Legislature works. That if a legislator can violate Section 13 of the Arizona Constitution, so be it. And if caught in doing so and a court invalidates the effects of the legislator’s actions, the attitude of the Ethics Committee seems to be, Oh well. The legislation is invalid. Let’s move on to next year. It smells of, if you can get away with it, good. If not, don’t worry since we will take no action.

 (I am well aware of Randall Gnant’s comments in his guide for the public, From Idea . . . To Bill . . . To Law, p. 51-52, on the not infrequent disregard of constitutionality of legislation by the Legislature).

I do not understand how Ugenti’s actions do not constitute grossly unethical conduct. It sends the message that, yes, this is the way it is. That the Legislature, as sovereign of the State of Arizona, can do no wrong. Sorry, I cannot accept that “this is the way it is.” The people have a “social contract” with the State of Arizona government that binds both parties, which, by your decision, shows that the Committee has chosen to ignore its duties and responsibilities under that contract, the Arizona Constitution.

I understand that much of what I had described in my case for disciplinary action is considered as that’s the way legislation is accomplished, that’s the way the legislature works.[2] Nothing wrong. However, in your response you categorize and restrict Ugenti’s action as a simple filing of an amendment. You mention nothing about the bill was her third and last ditch attempt to get it passed into law. Or that it was in violation of the Constitution and House Rule 16(D), which prohibits any such bill. House Rule 1 says that a violation of these rules can result in disciplinary action and even the expulsion of a legislator. You trivialized the entire incident.

Let us understand the gravity of Ugenti’s knowing and planned violation of the constitution. In the late 1930s President Roosevelt attempted to get legislation passed to pack the US Supreme Court in order to accomplish goals that he believed were for the good of the people — not the party, not the special interests. He was opposed by the US Senate that believed that the President was tampering with the balance of the separation of powers, which was not good for the country. In this incident, no laws were broken and no rules were violated in spite of the overwhelming controversy and seriousness of the legislation.

 More recently, the US Supreme Court in its Kelo decision found justification for interpreting “public purpose” the same as having the eminent domain meaning as “public use.” No laws and no procedures or rules were broken. All was legit and was viewed as in the best interest of the country. But, sadly, not with SB 1454. Not only was a Rule broken, but the Arizona Constitution as well. And the evidence I put forth shows the heavy hand of special interests, the HOA “stakeholder” cabal. (There is more that I have not yet released). Yet, no evil is seen by the Ethics Committee and that no investigation into the affair is warranted. What message does this send to the people of Arizona? What does it say about the State of Arizona?

 I cannot stress the need for action by the Ethics Committee to restore the faith and confidence in the Arizona Legislature. I ask that the committee take whatever action is appropriate and necessary for the House to commence disciplinary charges per House Rule 1. Ugenti must not be given a clean bill of health, a pass, a walk to try again another time. Disciplinary action will also serve as a deterrent to other so inclined legislators.

Please urge the Speaker to undertake disciplinary action on behalf the people, for the good of Arizona.

 

George K. Staropoli

 

References


[2] Id.

send a wake up call to the US Supreme Court on HOA defects

I just read the 23 page US Supreme Court amicus brief[i] for The Cato Institute in Mariner’s Cove v. the United States, No. 12-1453, written by an illustrious group of legal-academic aristocrats. Let me make it quite clear at the start that I am not part of that group, or even an attorney, so I don’t have a built in “good ol’ boy” bias.

Selective citations and quotes were made from a number of cases, journals, and books including those of Evan McKenzie, Paula A. Franzese, and Steven Siegel.  (They wrote a critique of the NJ Supreme Court Twin Rivers decision, and other works, but you wouldn’t know that from the quotes).  Also quoted was Susan French who made that comment, not quoted in the brief,  in the Forward of The Restatement (3rd) of Property: Servitudes that, “Therefore this Restatement is enabling toward private government.”

My activist take on the brief can be summarized quit simply as:

1.         HOAs are growing faster than the rabbit population.

“The number of citizens opting to live in community associations—and the extent of commerce affected by such arrangements—is sure to keep growing, as the majority of new housing built in the past three decades is subject to association arrangements.”

 2.         The people love HOAs. “More and more citizens choose to enter into these property-rights-sharing arrangements because they provide substantial benefits.”

 3.         HOAs and local municipalities have a beneficial symbiotic relationship for the betterment of the community. 

 Community associations provide a variety of private and public benefits, including increased property values, greater efficiency in the delivery of services, and lower costs to the public.

 “Community associations offer such benefits to local governments that developers are increasingly required [sic] to structure proposed housing developments as community associations as a condition of approval.”

 4.         That it’s only fair for taxpayers to pay the HOA for the loss of income. 

By shifting a greater burden for paying for such services to the remaining members of the association without compensation, the Government’s taking here presents a textbook case of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, as it does from technical concepts of property law.”

 

Now, from these quotes as a good sampling, the 9 Men in Black cannot help but think that HOAs are the next best thing to heaven on earth. They would have no clue whatsoever that there is “trouble in River City.”  I would venture that they have no knowledge of the happenings and goings-on in HOA-Land, and would have to rely on the self-serving Cato amicus brief.

What is needed is a response showing the other side of HOA-Land that can be obtained from some of the same authors used by Cato, McKenzie, Franzese, Siegel and others. Court cases can be cited like the horrendous Poris decision by the Illinois Supreme Court, and the Wittenberg decision by the California appellate court, to name a few.  Or how about asking the Justices to think about, and asked to explain, The Truth in HOAs Disclosure[ii] as a starting point.

We have an opportunity to be heard by the US Supreme Court!

WHAT IS IMMEDIATELY REQUIRED IS TO INFORM THE SUPREME COURT JUSTICES of loss of rights, privileges and immunities of citizens under a despicable argument of a bona fide and legitimate consent to be governed.  I am not a lawyer.  I cannot file an amicus brief!

This is a very good time to act and be heard!

 

Notes

 


HOA Gestapo tactics — the slippery slope steepens

In California there is the report of a midnight raid on HOA members to forcibly evict them. The Courthouse News Series reports (The Foreclosure From Hell) that

“Nine condo residents claim Taser-toting private security guards burst into their homes at 3 a.m. and assaulted them, forcing them into the street in their underwear, in a foreclosure the residents had never been informed of.” 

The security organization for the HOA and the HOA are being sued.  The complaint alleges, among other things, that

“During this approximate two-hour ordeal, the armed men threatened arrest and incarceration, menaced the plaintiffs with weapons, engaged in intimidation, positioning themselves immediately in front of and/or behind the plaintiffs, glaring at them menacingly and invading the plaintiffs’ space.” 

The plaintiffs seek damages for trespass, extortion, assault and battery, false imprisonment, invasion of privacy, conversion and intentional infliction of emotional distress.

In the highly public Travon murder case in Florida questions of HOA negligence are being raised.   In Arizona, for the 5th year, a bill that  re-asserts that public streets within HOA subdivision territories are regulated by the local government and not the HOA was again defeated.   In Illinois, however, the court did put a stop to HOA security people stopping and detaining people on the roads.

The question before us is:  what are the factors, the causes that lead HOA boards to act in such an uppity, defiant manner against their members and the public, as if they were indeed independent principalities?  The simple answer is,  because they can!  Is it the culture within the HOA that is too similar to the experimental conditions of the Milgram and Stanford Prison experiments? (See Why do people harm others in HOAs?)

Is it the public policy that the HOA must survive at the expense of individual rights and freedoms, with members’ losing the privileges and immunities guaranteed to all citizens?  Is it the pro-HOA laws that do not hold the HOA accountable to the state, that presumes that the HOA can do no wrong?  There are no penalties against HOA law-breakers, but there are plenty of state supported penalties that make HOA attorneys rich and force hardship and the loss of one’s home for trivial fines.

With this sentiment, this bias in our culture and society, HOAs have no restraint on running amuck, and on intentionally running amuck as witnessed here with the Gestapo raid.   I wrote about this dangerous slippery slope path in The public policy of the states with respect to HOAs.  In Legislative protection of HOAs: replacing US organic law with HOA organic law I wrote about the disappearance of the social contract and a return to a state of nature, to anarchy.

It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years . . . . And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature.

 Yes, each day, little by little, more and more such acts that were once unthinkable occur as this country speed us along the slippery slope to disaster.  I’m waiting for the knock on the door.  I have my papers ready. 

Legislative protection of HOAs: replacing US organic law with HOA organic law

Organic law is the fundamental basis of a government. The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA governed planned communities. In contrast, the U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi). The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government.

 

Arizona protectionism

How many times have homeowners sought justice before the legislature only to be told that they have recourse to remedy any slights by “voting the bums out”? Yet, when the time came to put some teeth into fair elections laws for HOAs, laws that would allow a fundamental function of a democratic government to work properly, the Arizona Legislature answered with a resounding NO! (21 – 9 final Senate vote on HB 2160). Where is the justice?  And justice is the hallmark of a legitimate government.

 The Arizona Legislature, for the fourth or fifth year, obstinately refused to tell HOAs hands off regulating public streets, even with respect to parking cars protected by municipal ordinances. Maricopa County Sheriff Arpaio, who on numerous occasions vehemently stated that he upholds all the laws, rejected policing public streets in HOA-Lands. SB 1113 died, and HB 2030 is sitting in limbo waiting for a floor vote for final acceptance.

 As of this date, only 2 bills of the 19 HOA bills were sent to the Governor, and one was vetoed as “too confusing” for the HOA board to deal with. HB 2484, which was amended by the conference committee to make it more HOA attorney friendly, which means more homeowner unfriendly, is now a “NO” bill.  Of the 5 Arizona HOA bills in this session that provided for penalties against the HOA governments, none were found acceptable: HB 2160, HB 2484/SB 1468, HB 2455, HB 2731, and SB 1240.

 

The HOA can do no wrong

 It is quite evident that HOAs are de facto state-protected “sanctuaries” — de facto independent principalities by the failure of legislatures to pass enforcement bills against HOA board violators. The HOA is treated by the legislature like the sovereigns and kings of long ago – the HOA board can do no wrong, no need for checks and balances, and no need for accountability. It appears that the HOA boards have become Godlike in the eyes of the legislators!

And everywhere the public interest people, the legal-academic aristocrats and current day Philosopher Kings, who clamor for individual and private property rights see no evil, hear no evil, speak no evil. It appears that, “unaccountable HOA government is better than public government with its protections,” has become their dogmatic principle. The Goldwater Institute promotes local government by means of restrictive covenants. A model law authorizing a transition from government-controlled local zoning and planning regulations to private restrictive covenants.” (See the 2011 report, Model Legislation, Decentralized Land Use Regulation Act).

 

The social contract is disappearing

 It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years ago that loose collection of colonies that our Forefathers rejected as unworkable. And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature. The Social Contract (“Man was born free, and he is everywhere in chains”) of Rousseau and John Locke has been slowly falling by the wayside, little by little.

The social contract theory of government maintains that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept corresponding duties to protect themselves and one another from violence and other kinds of harm. The US Constitution and all state constitutions are examples of the social contract theory, as opposed to the various HOA statutory Acts that are based on the Uniform Common Interest Act (UCIOA). UCIOA has served for state laws in a handful of states, while other states have modified it somewhat and still others used it as a basis for their statutes.

 The initial UCIOA of 1984, revised in 2008 with a questionable separate and detachable model Bill of Rights Act, flowed from The Homes Association Handbook of 1964, that joint effort by FHA, ULI (formerly the National Real Estate Foundation), and NAHB. (The Handbook was prepared with the “collaboration” of such entities as, the Veterans Administration, The Office of Civil Defense, and the Public Health Service).

 

 

How did it happen?

 Milton Mayer best describes what is happening in America when he sought answers as to why the good, average people of Germany let the Nazi Party take control prior to WWII. His words are applicable to today’s HOA-Land.  In 1995, in They Thought They Were Free, he wrote,

 

What happened was the gradual habituation of the people, little by little . . . . This separation of the government from people, this widening of the gap, took place so gradually and insensibly, each step disguised. . . . [Mayer believed that the good people went along] in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.

Welcome to the New America of HOA-Land

 

And you’d better believe it!

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