The Arizona Supreme Court has denied hearing the Tarter v. Bendt (CV21-0049-PR), a defamation lawsuit brought by an HOA president and attorney. In general, the Court does not provide any reasons or justifications for its decision and did not provide one. The attorney for Bendt, Lori Voepel, while addressing the legalities of the decisions, raised the question that Tarter, the HOA president, was a limited-purpose public figure entitling Bendt to additional free speech protections. It is my understanding that Sonia Bendt will be pursing a US Supreme Court appeal.
In my amicus brief I informed the Justices about the real-world functioning and operations of HOAs, and about the biased public policy resulting from the dominance of the national lobbying organization, CAI, and its agenda. I included aspects of public policy set forth by the Arizona pro-HOA legislature, judges in their decisions and opinions, and the silence of the media to inform the public as to this reality. I had hoped that the case would be remanded for consideration of the role of the HOA president, since the complaint concerned acts and conduct by Tarter in his capacity as HOA president.
In my amicus brief (an advisory filing as a “friend of the court”) I painted a broad picture of HOAs as public forums with protected free speech concerning questions of HOA governance. A favorable decision would have prohibited HOA boards of directors from restricting member criticisms and allowing “opposition parties” equal access to the same means and vehicles that the BOD uses; namely, the HOA magazine, email distribution, use of facilities for meetings and “townhalls,” to name a few.
I am very disappointed in the Arizona Justices. Permitting an outlandish financial damages and adding punitive damages of $1,000,000 and $500,000 in compensatory damages is outrageous and not warranted by the evidence or by the HOA legal scheme. An opportunity to protect citizens living in HOAs from second class citizenship was ignored! Have they forgotten the 8th Amendment prohibitions: “nor excessive fines imposed, nor cruel and unusual punishments inflicted”? OH, HOAS are not public bodies!
The homeowner, Bendt, is punished for speaking out in admittedly harsh terms. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants. Allowing them to raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct. “No negatives about HOAs shall be allowed” seems to be the Court’s policy.
“Something is rotten in the state of Denmark.” No, something is rotten in the state of Arizona!