The impact of the Kavanaugh decision on HOA due process

With the confirmation of Brett Kavanaugh as a Supreme Court Justice, the US joins the list failed democracies, not by revolution or coup d’état, but by the slow decay and corruption of its democratic institutions and norms.  In their book,  How Democracies Die,[i]  the authors wrote,

Democracies may die at the hands . . .  of elected leaders . . . who subvert the very process that brought them to power. . .. More often, though, democracies erode slowly, in barely visible steps.

Elected autocrats [and parties who] subvert democracy – packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents.  Democracy’s assassins use the very institutions of democracy — gradually, subtly, and even legally – to kill it.

And this is just what happened with the Kavanaugh vote.  Not being in the majority, the Democrats could do nothing but hope several Republicans broke rank and voted no.  This did not happen.

Would you want Kavanaugh to be the deciding vote on your life-death case that involved controversial political positions?

In my  January 2018 post, HOA-Land: the product of the decline in democratic institutions in America, I argued that HOA-Land was the result of this slow death of democracy.  Deborah Goonan makes a strong case for the trickle down effect of the death of democracy on HOA due process.  Her lengthy and highly informative post, Does an HOA respect your due process rights? Don’t count on it., goes into a detailed analysis of the Hearing and relates it to HOA due process. She writes,

It’s sad to say that America’s association-governed communities operate under the same dysfunctional and divisive politics — with the exception of occurring at the local level rather than the national level.

The common boiler plate in CC&Rs shortens the requirements for due process to simply, “an opportunity to be heard.”  But, Deborah writes,

But due process, as understood in the context of the U.S. Constitution and centuries of law going back to 16th Century England, is intended to offer greater protections for the accused, ensuring a fair hearing of the issues before a disinterested third party, and, preferably, a jury of one’s peers.

She quotes from LegalDictionary.net, constitutional due process means

The right to an unbiased trial
The right to be given notice of the proposed trial and the reason for it

The right of the individual to be aware of evidence against him

The right to cross-examine witnesses for the opposition

The right to present evidence and call witnesses

The right to be represented by counsel

The effect on HOA due process, and on other issues of private rights, is to signal to rogue HOA boards that they can do as they please so long as it supports HOA-Land according to the CAI School of HOA Governance. It says to the HOA boards, the government is behind you and will ignore the Constitutional and Bill of Rights as it pleases.

Who can stop it? No one but a strong turnout by the people, who still believe in America as a democracy, in the upcoming elections.

 

Note

[i] How Democracies Die, Steven Levitsky & Daniel Ziblatt, Crown Publishing, 2018. Based on their research into democracies, internationally and historically, the authors make the case that the long-term decline in democratic norms and institutions has given rise to demagogic leadership.

Published in: on October 8, 2018 at 9:07 am  Comments (13)  

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13 CommentsLeave a comment

  1. “Would you want Kavanaugh to be the deciding vote on your life-death case that involved controversial political positions?”

    Yes. And I think Kavanaugh will do the right thing whether he agrees or not–and will follow the constitution and the law–rather than push through his own agenda. I believe in the long run you will see what I mean and maybe we’ll get another post that incorporates some of his really sound decisions.

    • I agree. “The proof is in the pudding.” Will he surprise everyone and act with integrity and for the country, or will he be at the call of Trump, the powerful tycoon? His last statement before the hearing was a powerful alligience to the Republicans and Trump. No guarantees in life, it just goes on.

  2. Yup, ain’t that the truth! However, I have been lied about by the B.O.D.
    and they have told every person in this 100 home gated community that they don’t want me in here, they have done so many horrible things to me and my property and continue the assault. No one talks to me and the
    abuse has taken a heavy toll on my health and well being. The lies are endless, damage in the tens of thousands including flooding my unit, tires slashed and nails put in them about 7 times now. $2500 smashed damage to my car. refusing service I pay for, destroying my new lawn by tearing it up by the workers that take their orders the Board and carry them out. Telling everyone to have their dogs use my rear yard as their doggie park. I’m now 83 YO and in failing health, I am so tired of it all and at times I wish I could go to sleep and never wake up. It’s the same dirty tactic’s our government is using on us. Breeding hatred at every turn… Just like Trump! It’s endless and shameful how low some people sink, and the newcomers are warned to stay away from me and they have no idea of the truth and since they want to get along with the board and may be fearful of their own standing in the community, they join the mob. they have entered my home without knocking and when I go out, never giving any notice. The HOA gets away with murder while they break many of their own rules they make for the shareholders.I can’t sell my home and replace it with another as i did a lot of upgrades and there
    isn’t another property at the price i would get that could begin to compare with this one even at $100K more. at 83 it’s not easy to pick up and start over all alone.Is there any help out there, anyone listening that has a suggestion?

  3. Both you and Debrorah make excellent points but the fact is that many HOA’s are run by bullies and they believe in selective enforcement. While Lisa Murkowski and Kamala Harris spoke about real justice, the push for Kavanaugh to get appointed got through like many situations in HOA. All evidence is lacking in most cases in HOA. It is usually biased especially because the Board has the protection of D and O Insurance. They are able take advantage of their position against the homeowner. There is very little fair justice anymore in the nation and certainly very little in HOA. I have been a member of the Scottsdale Judicial Appointments Advisory Board for the past five years and I can tell you first hand that fair justice does not prevail in our city and can assure it certainly does not exist in my HOA.

    • And the question is, did the rejection of fair justice under our Constitution come before or after our government allowed the proliferation of HOAs?

      Hard to say which came first, but it’s clear that the two insitutions feed off of each other.

  4. How does the appointment of a constitutional conservative represent a failure?

    Sent from my iPad

    >

    • With all due respect, the Constitution has become another piece of paper to be interpreted and ignored by those in power.

    • Agreed. I don’t see it as a failure either. But, as George said, “the proof is in the pudding.” I was shocked when Justice Ruth Bader Ginsburg told an Egyptian TV station that she would not recommend the U.S. Constitution as a model for Egypt’s new government.

      “The problem,” she said “is that the U.S. Constitution is “a rather old constitution.” Ginsburg suggested that Egyptians should look instead to the Constitution of South Africa or perhaps the European Convention on Human Rights. All these are “much more recent than the U.S. Constitution.” (thanks to .dailysignal.com for the quote)

      I believe in the constitution and believe it is one reason for all our progress and success in this country–respect of others rights, due process, private property–

      I see Kavanaugh as a really good man who also believes in the rule of law and I trust he will adhere to that.We’ll see if he is Trump’s puppet, But I doubt it.

  5. DEAR POS, Please do not send me any more of your liberal crap, LOSER!!!!

    Suzanne M Yang, M.D. docyang@aol.com

    • You can unfollow anytime you like.

    • And there’s a prime example of the complete loss of decorum and civility in our nation. There’s no intelligent discussion of the issues. Just hurl insults and accusations, and engage in name-calling. Divide along party lines, into warring tribes.

      It makes a mockery of the “United” States of America, let alone the industry’s claim that HOA’s somehow promote a sense of “community.”

    • Suzanne–don’t stoop to using the same tactics you disagree with Please–what was done to Kavanaugh was not the proper way to disagree with another political philosophy. Although I don’t see what George is meaning in this post–that doesn’t make all his good work bad or discredits it. He is brilliant and very good at seeing the larger HOA picture and I want to hear him and respect him for his work. You respect his work too–you just don’t agree with this one post–that’s OK..but maybe not OK to act like an outraged person who can’t/won’t listen.

      OK–I came off very self-righteous–but going to leave it. We have to come together somewhere and beginning with civility is a good starting point.

  6. Mr. Staropoli –

    I don’t know why I was stunned that due process was ignored in this hearing over the weekend, but I was nevertheless stunned.

    People tell me to let go of the idea that good people will eventually do the right thing.

    But what is left after you lose that hope? I still believe that people will do good, and the alternative mindset is a darker hole that must be avoided.

    Andrea

    From the movie Fair Game 2010

    The offence that was committed was not committed against me. It was not committed against my wife. It was committed against you. All of you.

    Now if that makes you angry or feel misrepresented, do something about it.

    When Benjamin Franklin left Independence Hall just after the second drafting [of the Declaration of Independence], he was approached by a woman on the street, who said: “Mr Franklin, what manner of government have you bequeathed us?”

    And Franklin said: “A Republic madam. If you can keep it.”

    The responsibility of a country is not in the hands of a privileged few. We are strong and we are free from tyranny, only as long as each one of us remembers his or her duty as a citizen.

    Whether it’s to report a pothole at the top of your street, or lies in the State of the Union address, speak out, ask those questions. Demand that truth.

    Democracy is not a free ride.

    >


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