Publications on HOA constitutionality and legal structure

Peter F. Drucker was an internationally renowned management consultant in the 50s and author of the management “bible,” The Practice of Management. “A classic since its publication in 1954, The Practice of Management was the first book to look at management as a whole and being a manager as a separate responsibility.” Bob Woodward you should know. 

View publications here: Amazon.com: George K Staropoli: Books, Biography, Blog, Audiobooks, Kindle

Media’s inexcusable silence on  reporting HOA legal issues

This writing  addresses the failure of the Arizona media, and in general all news media across this country,  to report in-depth on HOA legal developments. In particular, as an example, its failure to cover the Arizona Supreme Court Petition for Review, Tarter v. Bendt (denied).

It was a defamation case brought  by an HOA president dealing with matters of HOA governance. It resulted in a shocking $1,500,000 in damages against a homeowner who criticized the President.  The homeowner raised the issue of the HOA president as a “limited-purpose public figure.” An amicus brief informed the Justices on the larger picture of protected speech in the recognized HOA public forum on matters of HOA governance.

If it were not an HOA case, it surely would have made widespread news.

Most of you probably ever heard of Edward R. Murrow (1940s-60s) newscaster that, the Radio Television Digital News Association has annually awarded the Edward R. Murrow Award to individuals who make outstanding achievements in electronic journalism. Award recipients have included Peter Jennings, Ted Koppel,  Bryant Gumbel, Brian Williams, Katie Couric, Dan Rather and Tom Brokaw.

Here are memorable quotes quite meaningful for today’s media who have been silent on reporting HOA reality news.

A nation of sheep will beget a government of wolves.

“We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it.

“To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”

In 2017 I posted a Commentary that focused on the failure of today’s media to uphold its obligation under the 1st Amendment to inform the people. This protected freedom of speech was granted for the above important purpose, a purpose that the media seemed to have forgotten.

“The media of today, especially the local news media . . . seem to be oblivious to important HOA bills before state legislatures. Bills that would affect some 20% [now estimated to be 24% or more] of the people  across the country.

“There have been no in-depth analyses or debates of the HOA legal concept even at the national level, as the spread of HOA-Land is nationwide. The Sunday news talk shows, or by 20-20 and Dateline, are silent. There have been no discussions on whether HOAs, as de facto governments, should by made a government entity. Or whether state legislatures should continue to allow equitable servitude law to supersede contract and constitutional law. Or the lack of debate on the absence of “truth in HOAs” disclosures, similar to truth in lending and truth in advertising.

“Or what is the legitimate government interest to allow private governments to deny the equal application of the laws. Or to allow constructive notice – just take your deed — to bind unsuspecting home buyers to the CC&Rs sight unseen. Apparently there is no need to inform buyers at closing

But the media, with respect to HOA-Land, was silent and did not acknowledge its justification for its silence.  For more information, see my 2017 Commentary at Good night and very good luck – the unspoken media HOA alliance and Can HOA members expect justice in Arizona courts?

 . . . .

 Relevant to this Commentary, Maria Ressa (Filipino-American) just won the Nobel Peace Prize for 2021. The Nobel Committee announcement spoke to the role of journalism and its affect on democracy.

 “Ms. Ressa and Rappler [her internet news site] have also documented how social media is being used to spread fake news, harass opponents and manipulate public discourse. . . . The Norwegian Nobel Committee is convinced that freedom of expression and freedom of information help to ensure an informed public,”

She is also author of How to Stand Up to a Dictator, a story of “how democracy dies by a thousand cuts” (to be released in July 2022).

“Private Metropolis” revisited

It is my strong belief that  the HOA legal model of local government played a part  in the demise of democracy in America[i] has been greatly assisted by the recent publication Private Metropolis.[ii]  In my prior post on Private Metropolis,[iii] I was very pleased by the opening Introductory paragraph,

The opening introductory segment encompasses a wide description of special  governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 27% of the population — according to CAI — as residents), that “became, in effect, shadow governments.” 

Unfortunately, these highly descriptive political concepts  used in this very broad study of local government failed to appropriately address the form of local government known as HOAs.  Scant attention is given to these associations by the authors. In the 312 pages “homeowner association” is mentioned just once and “CID” twice. But “shadow government” and “quasi-government” and “special districts” are tossed around quite frequently. Readers, having read the very enticing title, will be greatly disappointed by its failure to deal with the most direct affront to the eclipse of local democratic government: the HOA legal model of governance that has been supported by all state legislatures across this country.

HOAs, my generic term for community and homeowners associations, satisfy the fundamental definition of a political government.  Black’s Law Dictionary (7th Ed.) definition separates the men from the boys: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.”  And that is the unique feature of political government that  distinguishes an HOA from  a business, a non-profit charity, a club, a union, etc. I believe that the decision to form HOA governance outside the domain of public government was intentional to avoid constitutional restrictions.[iv]

They are a de facto yet unrecognized form of local government — other forms being mayor-council, council-manager — born and created as private entities, and as such,  have escaped, for the most part, under the common defense prohibiting  any ”law impairing the obligation of contracts.” Although the other forms of public local government are subject and held to the Constitution and the laws of the land. HOAs meet every criteria set forth by the authors as indicated above and epitomize the eclipse of local democratic government. 

The authors appear to admit the failure of the  ivory tower “philosopher kings” (my terms) to actively participate in preventing the fall of local democracy: “Instead, even scholars who study local governments [only recently realized] the degree to which quasi-public institutions are insulated from the democratic process.”  That applies strongly to authoritarian HOA governments. 

Notes


[i] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).

[ii] Private Metropolis: the Eclipse of Local Democratic Government,  Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).

[iii]  Private Metropolis: explaining the demise of local public government.

[iv] CC&Rs are a devise for de facto HOA governments to escape constitutional government.

Business judgment rule not right for sui generis HOAs

This examination of the business judgment rule is a supplement to my amicus curiae brief to the AZ Supreme Court (Taylor v. Bendt, CV-21-0049, awaiting decision to hear case) in which I provided guidance in regard to 1) HOAs are sui generis created by rejecting Constitutional protections and instituting and supporting  separate laws for special organizations, 2) HOA-Land has been under the heavy influence and domination of the national lobbying entity, Community Associations Institute (CAI), and 3) as a result of the above a pro-HOA mindset has crept into our judicial system resulting in bad laws setting  bad precedent.

You can read the complete 30 page treatise (15 pages of argument plus apprendices) here .

Private Metropolis: explaining the demise of local public government

My repeated efforts to instill, to inculcate, a necessary broad  understanding  of democratic principles and government — and the part played by the HOA legal model of local government — in the demise of democracy in America[1] has been greatly assisted by the recent publication Private Metropolis.[2] (It was published at the same time as my amicus curiae filing with Arizona Supreme Court in Tarter[3]).

The opening introductory segment encompasses a wide description of special  governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 24% of the population as residents), that “became, in effect, shadow governments.” 

My 21 year long-term effort in the trenches  has been to introduce the broad level constitutional issues and democratic philosophy to the average American, who does not know and cannot understand the words of these learned political scientists. I have, for the most part, failed. Private Metropolis gives me additional support and the basis for continued efforts to educate the public at large who suffer the consequences of a  “not my job” attitude.

It is up to the homeowner advocates and HOA boards to embrace this reality and expose the arguments of supportive political scientists to the policy makers in your state, as well as educating the media  on its  continued silence on these issues.

Endnote


[1] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).

[2]  Private Metropolis: the Eclipse of Local Democratic Government,  Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).

[3] Pro Se Bendt amicus brief accepted by AZ Supreme Court.