CAI argues HOAs are democratic, yet not a government

My first reaction to this unbelievable attempt to distort reality is: “Beware the Jabberwock, my son!”1  In his April 2, 2008 Ungated blog entry, CEO Skiba faithfully follows the Alice in Wonderland perception of homeowners associations, namely, as I’ve written earlier, of “what you see is not what you get”. 

Skiba writes:

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis. . . .

. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

  

“Beware the Jabberwock, my son!” 

First, yes HOAs are indeed de facto governments and are authoritarian regimes that rest upon adhesion contracts and state protective statutes, depriving the people, the homeowners, of their freedoms and liberties under the Constitution.  Any treatise on constitutional law will provide the Supreme Court criteria for state actors (entities that function as if a state entity), which apply to HOAs.  CAI loves to direct readers to that one archaic test of state actors,  that of “public functions” from a 1946 case about company towns.  

Just because you can vote does not make a territory or community a democracy. Ask any who have live under Communist Russia, China, or Cuba where voting is allowed, or those in America who lived under Mayor Daly, Boss Tweed or Huey Long, to name a few.  And I guess Mr. Skiba is not familiar with Robert Dahl’s look into democratic performance. The author sets 5 criteria to measure democratic performance: 1) maintaining a democratic system, 2) protecting fundamental democratic rights, 3) insuring fairness among the citizens, 4) encouraging a democratic consensus, and 5) a democratic system that solves problems.2 

Second,  Mr. Skiba also seems to be short on the principles of the Founding Fathers and the contents of the Constitution, reflecting their distrust of government, that contain checks and balances, a separation of powers, an independent judiciary, and a Bill of Rights to ensure that the people’s rights and freedoms are protected. All are absent in the so-called democratic, corporate form of authoritarian governance called the HOA. 

Mr. Skiba continues further with, 

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .

 . . . .

I don’t think government should dictate in detail how associations should be run from some far off state capital or even Washington, DC. That would be taking away an associations democratic rights and responsibilities.

This statement is truly unbelievable!  CAI is a strong proponent of UCIOA, that uniform, top-down statutory model to regulate HOAs being promoted in many state legislatures.  UCIOA imposes statutes that permit, among other things, foreclosure; due process before your HOA, biased government without the right to present and question witnesses as required under the Constitution, but absent from private contracts; and the absence of enforcement against HOA violations with appropriate penalties to serve as a deterrent, as is the purpose of criminal laws.  Is this the voice of the local community?  The members of your community? 

And finally, Mr. Skiba must resort to patriotic imagery and sentiment in order to gather support for his lost cause, identifying the author of the following as an attorney and Vietnam vet, 

Democracy is built on the simplest premise that has ever supported a political system, that a majority of the voters will be right more often than they are wrong. The inevitable errors will be corrected by the voters–when they perceive those errors.

The statement is a belief in the system, yet fails to address the important foundations and concerns of  the Founding Fathers with respect to those unalienable rights, you know, the ones that no government can take away, and the rule of the majority.  The dangers of one faction, a clique in today’s terms, dominating another was well known to the Founding Fathers.3  The Founding Fathers addressed the serious abuse majority rule, that of the tyranny of the majority leading to the tyranny of the legislature. The end result being the trampling of those unalienable rights that no government can take away, those rights protected under the first 8 amendments as well as the 9th and 10th amendments.  

And this is one of the most serious defects in the HOA legal scheme as applied to the proper exercise of democratic functions to protect the rights of the minority. The members of the HOA have no such equivalent rights under the HOA “constitution”.  HOAs are a business form of authoritarian governance, as Skiba and other CAI stalwarts have repeated pronounced. Mr. Skiba seems to be “small talking”, oversimplifying the issues, and distorting them and the reality behind HOA governments. They are not democratic at all!  Don’t believe it!  

Beware the Jabberwock, my son! 


1 “Jabberwocky” is a poem of nonsense verse written by Lewis Carroll, originally featured as a part of his novel Through the Looking-Glass, and What Alice Found There (1871).  Read the poem at http://www.math.luc.edu/~vande/jabtext.html. Lewis Carroll also wrote Alice in Wonderland.  

2 Robert A. Dahl, How Democratic is the American Constitution?”, p. 92-93 , Yale University 2002.

3 The Federalist papers, No. 10, 78.

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Published in: on April 3, 2008 at 9:44 am  Comments (3)  

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  1. […]  I am reminded of , “Beware the Jabberwock, my son” […]

  2. […] CAI argues HOAs are democratic, yet not a government, HOA Constitutional Government webpage, Apr. 3, 2008. (Commentary on CEO Skiba’s […]


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