Calif. holds HOA elections as protected free speech public elections

Speaking of HOA members and public voting rights, “Why Are HOA Members Allowed A Public Vote?”[1], let’s look at the reverse side and ask, Why aren’t HOA elections equivalent to public elections?  This is another example of how successful constitutional challenges can lead to and bring about broad HOA reform legislation.

Many of us are aware of the treatment of dissenting and opposing voices with respect to BOD actions and elections. There are the threats by rogue BODs of harm, and of  slanderous and libelous statements aimed to discredit and injure the dissenter’s reputation. And then, in true attack the attackers,  there are the lawsuits by the BOD claiming that the dissenter’s speech was harmful and injured the reputation of the HOA and/or BOD members.

Anti-SLAPP

These lawsuits are referred to as Strategic Lawsuits Against Public Participation – SLAPP —  whose purpose is to silence the dissenting homeowner(s) by arguing that the HOA/BOD was defamed.[2]  In the name of justice, or the appearance of justice, many states have adopted anti-SLAPP statutes to protect the dissenters; in our case here, the homeowners. The common criteria to file an anti-slapp suit includes (my emphasis):

A moving party may file a special motion to dismiss [the HOA suit] under [the state’s] antiSLAPP statutes “if an [HOA] action is filed in retaliation to the exercise of free speech [homeowner dissent].” In considering a special motion to dismiss, a district court must undertake a two-prong analysis. First, the court must determine whether the moving party [homeowner] has, by a preponderance of the evidence, established that the action [anti-slapp motion] is based upon a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern.

Furthermore, 1)  the statement must be made without knowledge of falsehood or truth with respect to a public concern, 2) the statement must be made in a place open to the public or in a public forum, and 3) “aimed at procuring any governmental or electoral action, result or outcome.” WOW! No chance in hell to bring an anti-Slapp suit against an HOA.

HOA elections are public

However, as expected, the anti-slapp statutes vary from state to state with Arizona adopting the very strict government election requirement while California has held, over several court cases, that (my emphasis):

California courts have repeatedly held in the context of anti-SLAPP litigation that board meetings of a homeowners association “serve[] a function similar to that of a governmental body. As [the California] Supreme Court has recognized, owners of planned development units “‘comprise a little democratic subsociety.”‘ … 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.”[3]

The use of mail or internet – social media or websites open to the public —  have been held by the California courts to be “ a public forum.”   Nextdoor was held to be a public forum in spite of the fact it functions as a closed group, but its intent is clearly to be open to anyone.[4]

This is another important tool for homeowners and advocates to use in CA, and to lobby for the same return to justice anti-slapp laws in other states.

Notes

[1] George K. Staropoli, “Why are HOA members allowed a public vote?” HOA Constitutional Government (July 20, 2019).

[2] See in general, Colorado’s anti-Slapp statute, Colorado becomes 31st State.

[3] Quoted Appellant’s Opening Brief,  Kosor v. Olympia Companies, LLC, (Nev. SC NO.75669, Feb. 8, 2019). At this writing Kosor has not yet been accepted to be heard by the Nevada Supreme Court.

[4] Id, Part C, vii, printed page 33.  See Kronemyer v. Internet Movie Data Base, Inc., 59 Cal. Rptr. 3d 48 (2007).

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HOAGOV

I have been a long-term homeowner rights advocate and author of "The HOA-Land Nation Within America" (2019) and"Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

One thought on “Calif. holds HOA elections as protected free speech public elections”

  1. George-

    You are like the ‘ bunny’ that keeps on providing energy to inform the misguided about the illegality of the HOA scheme to deprive members of their rights.

    Keep going and never run out of energy.

    Barry

    Sent from my iPhone

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