Protecting HOA political free speech on matters of general community interest

Should matters of concern and interest to the general HOA member-community be protected from suits designed to stifle participation in HOA governance?  Homeowners in HOAs should be protected from these suits, called SLAPP suits, just as the general public is protected in most states that have anti-SLAPP laws.

The question becomes: will the courts hold issues of HOA governance to be a matter of general public interest and concern?  A failure of the courts to do so puts HOA governments solidly into the category of independent principalities, where members are not permitted free speech on community public issues, especially about their governing body, the HOA.

The expected defenses are 1) that HOAs are private, contractual governing bodies not subject to the 14th Amendment protections, which the members have agreed to obey; and disregarding the Ruiz opinion above,  2) the local HOA community cannot be considered as a public body that is interested in and concerned with matters of public interest; it’s a local, private matter.

There are several California cases holding that HOA concerns amount to public speech because it affects the community at large.  The following are anti-SLAPP suits.

“A SLAPP suit (strategic lawsuit against public participation) is a lawsuit brought primarily to chill a party’s constitutional right of petition or free speech. The anti-SLAPP statute was enacted to prevent and deter lawsuits that chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances and provides “an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims” arising from the exercise of those constitutional rights. . . . . The resident’s front lawn is a public forum for purposes of the First Amendment. . . . Moreover, it is now well established that the anti-SLAPP statute protects private conversations as well as those occurring in a public forum.” (Santa Barbara).

“’Public interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters,  ‘private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.’ (Ruiz; according to California statutes).

[My emphasis]

“[W]e hold the trial court properly determined the anti-SLAPP statute applied because the evidence showed the alleged defamatory statements were made “in a place open to the public or in a public forum” and concerned “an issue of public interest. . . .  The two locations where the alleged defamatory statements were made–at the Board meetings and in the Village Voice newsletter [HOA] –were open to the public and constituted “public forums.” Additionally, because each of the allegedly defamatory statements concerned [*11] the manner in which a large residential community would be governed, they concerned “issue[s] of public interest.”  (Damon).

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”  (Damon).

My quick survey of state anti-SLAPP laws shows AZ, IL, HI, GA and MD as having strict laws relating to only issues before the legislature or a law, as petitioning rights.  A host of other states contain the much broader right to file an anti-SLAPP suit for issues of public interest. They are: CA, FL (as of 7/2015), IN, LA, OR, RI, TX, VT, and WA.  Check current status.

Case references:

  1. Santa Barbara Beach Club HOA v. Freeman, 2d Civil No. B212972 (Cal. App. 2nd 2010)
  2. Ruiz v. Harbor View CA, 37 Cal.Rptr.3d 133 (2005)
  3. Damon v. Ocean Hills [an HOA], 102 Cal.Rptr.2d 205 (2000)

representing yourself in court against HOAs

An excellent post in the August 15, 2015 L.A. Times column, Associations, by Donie Vanitzian, and co-written by attorney Zachery Levine, contains important information on HOA litigation.  Please read it and see what you are up against, and what is needed to have a chance at winning in court.  Thanks Donie for all your good work.

An excerpt:

Success in litigation is based on legal knowledge, resources and organization. Deadlines arise frequently, necessitating quick and timely responses. You are responsible for monitoring what the other side is doing and filing. You must know all applicable deadlines for your case and how to calendar them.

Good luck.

Published in: on August 15, 2015 at 9:34 am  Comments (2)  
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Letter to Sen. Rubio on necessity of national HOA reforms

August 10, 2015

open email letter

Dear Senator Rubio,

In 2008 as FL Speaker of the House you created the Select Committee on Condominium and Homeowner Association Governance (FL legislative HOA committee gets subpoena power).  I attended the Tampa hearing and edited the public domain video of the hearing.  These clips can be found at http://YouTube.com/HOAGOV.

Your help, as candidate for the presidency and as the future President of the United States, is needed to return some 20% of Americans to the American Zone. HOAs are unconstitutional private governments strongly supported by special interests with the help of state legislatures, as you may well know.  Please understand that HOAs can function as local state entities that will provide due process and the equal protection of the laws to homeowners who were mislead about what HOA life is really all about.  It is a national issue!

For your easy reading, and that of your staff, the fundamental constitutional defects are presented in 3 documents that contain substantial legal authority and evidence.

Please read:

HOA Member Declaration of US and State Citizenship
HOA Common Sense: rejecting private government
HOAGOV Education Series

The future of America is the continued social and political decay of the principals and values that founded this great nation unless you continue HOA reforms on a national level.  America must be protected from constitutional rejection by means of alleged private contracts that cross the line from property interests to the creation of private governments, governments that are not subject to the 14th Amendment!

You can awaken the people to the silent special interest and state support and acquiescence of private authoritarian governments by calling attention to the un-American HOA legal structure during your campaign.

Respectfully,

George K. Staropoli
602-228-2891
Published in: on August 10, 2015 at 11:34 am  Comments (1)  
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HOAGOV EDUCATION SERIES: understanding the real lives of HOA members

My purpose for the Education Series, taken from a collection of my Commentaries (WordPress blog), is to present the other side of the HOA legal concept that has been intentional kept hidden from the public, the media, and the legislators.  Homeowners associations (HOAs) — generic for POAs, CIDs, planned communities, and condominiums — have become an institution and are unquestionably accepted as “that’s the way it is.”

Over the years, the general public has heard only the benefits of HOA regimes, but has heard nothing about the means to achieve these benefits. The rationale, I suppose, is that the end justifies the means. This quiet acceptance of the HOA private government regime came to be as a result of aggressive lobbying by the HOA special interests, also known as HOA stakeholders (homeowners not included). The media, that was granted 1st Amendment freedom of speech rights in order to ensure a properly informed electorate, failed its obligations by remaining silent.  Nothing bad, seriously bad, about HOAs is publicized by the media. As you can read in my post on George Orwell’s 1984, the Ministry of Truth (a 1984 agency) parallels Goebbels’ Ministry of Public Enlightenment and Propaganda:

The Ministry of Truth uses control over the education system and the communications media to keep the masses in a state of ignorance and incapable of perceiving the facts of their manipulation. By controlling all sources of information, and playing one ignorant group off against the other, they ensure that effective opposition does not arise. While the masses attempt to make sense of the false reality fed to them in the schools and on the telescreens, the elite manipulators that write the scripts laugh at their confusion.  (Freedom is Slavery, The Modern History Project, April 24, 2015).

The Commentaries listed below present a broad picture of the current conditions, culture and environment relating to living in an HOA controlled home.  Violations of the Constitution’s equal protection of the laws and inadequate due process protections, pro-HOA state laws, legislative support for HOAs, the national business lobbying organization misleading the public that it is an unbiased educational organization, and the HOA attorneys and managers are all presented and discussed in these posts.

For readers who are interested in the history of how HOAs came to be can read my 121 page analysis, with references and legal authorities: The Foundations of Homeowners Associations and the New America.

Become informed.   Please read on.

 READING MATERIALS (click on links to access posts)

 A.    Constitutional issues

  1. HOA Member Declaration of US and State Citizenship
  2. HOA Common Sense: rejecting private government (complete series as PDF)
  3. CC&Rs are a devise for de facto HOA governments to escape constitutional government
  4. HOAs violate local home rule doctrine and are outlaw governments
  5. The unconstitutional delegation of implied rulemaking powers to HOAs
  6. Unconstitutional delegation of power to HOAs
  7. HOA reforms needed to guarantee U.S. Constitutional protections
  8. model HOA regulatory agency bill

  B.   HOA oppression

  1. Why do people harm others in HOAs?
  2. George Orwell’s 1984 is alive and well in HOA-Land

  C.   Community Associations Institute (CAI)

  1. Misrepresentation:  CAI comes with unclean hands
  2. Will the real CAI standup: its contradictory beliefs, pronouncements and goals
  3. CAI: the HOA form of government is independent of the US Constitution
  4. HOA constitutionality will cause the collapse of CAI

Now comes HOA taxes or assessments

In Biggs v. Betlach[1] instead of an issue of public or private agency we have the question of what’s a tax and what’s an assessment. The pro – con briefs are very instructive as relating to the HOA question of: Are HOA assessments like public taxes or like fees and assessments? If HOA assessments are clearly a tax, if public, then we have one more argument that HOAs function as public entities.

The case involves a group of AZ legislators seeking to have a federal Medicaid expansion bill declared unconstitutional, because the bill deals with tax increases and requires a 2/3 vote, which did not happen. (Why it was sent to the Governor is a guess, except they probably thought Governor Brewer would veto it, but she didn’t). Skipping the other issues in this case, I deal with what’s a tax and what’s an assessment as argued in the Goldwater filings.[2]

Note the clear statement of what’s a tax and what’s an assessment. Goldwater cites several references (not provide here) in its brief presentation of the law regarding taxes:

“In Arizona, taxes are defined as levies that are mandatory and not calculated based on the service received, whereas fees are voluntary and related to the benefit received by the paying entity, and assessments are levied against property that is specially benefitted by the improvement they fund.”

For example, “[O]ne key difference between university tuition and the [Medicaid] tax – university tuition is a fee, not a tax, because it is collected in direct exchange for a service provided and benefit received – specifically, education.” Similarly, we have various license fees, registration fees, etc. that are paid for a service of personal benefit. To help make it clearer, although the term “property assessment” is used quite often, it does not refer to the valid property tax but to the monetary valuation of the property, which is used to determine the amount of tax. It is a tax.

Goldwater goes on to argue that the purpose of a law cannot trump and supersede the constitution, nor can the legislature interpret what is constitutional. The position that a law serves “To promote effective government administration and pragmatic problem solving” is viewed as “Defendant’s preferred ‘public policy’ cannot trump voter intent or supersede constitutional provisions.”  Does that sound familiar?  HOAs provide benefits and, implicitly, therefore the laws and Constitution can be ignored?

Particularly relevant to HOAs is the argument that,

“Constitutional restrictions on legislative authority cannot be waived by the legislature itself, especially in collusion with special interests who benefit from the unconstitutional act. . . . The legislature cannot delegate to another branch of government—least of all an unelected administrator—the quintessential legislative power: the power to tax.”

So, forgetting about under what laws HOAs are created, what say you about HOA assessments as taxes and hiding behind a corporation structure[3] whose constitutionality is defended by the legislature and not the courts. In HOA-Land, while the names have been changed to protect the guilty, their functions are basically the same. The HOA assessment is a tax hiding behind a corporation shield.

Notes

[1] CV2013-011699, Maricopa County Superior Court, yet to be decided. Biggs is the Senate President with numerous legislators as co-plaintiffs. Betlach is an agency director. Prominent constitutional lawyers from The Goldwater Institute (for plaintiffs), the Arizona Center for Law in the Public Interest, and The William E. Morris Institute for Justice (for defendants, the state) are involved,

[2] PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; PLAINTIFFS’ COMBINED RESPONSE TO DEFENDANT’S AND INTERVENORS’ MOTIONS FOR SUMMARY JUDGMENT.

[3] See corporations cannot be used to evade Constitution and CC&Rs are a devise for de facto HOA governments to escape constitutional government

Published in: on July 22, 2015 at 5:21 pm  Comments (1)  
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