Can HOA members expect justice in Arizona courts?

“HOA members in Arizona should not expect justice from the courts”

If you are a member of an Arizona HOA/condo, or soon plan to be one, you should pay heed to the above quote made in response to the Arizona Supreme Court’s denial to hear the Bendt appeal petition for review.[i]  In my Commentary, trying to understand the rationale for the denial,

“The homeowner, Bendt, is punished for speaking out, in admittedly harsh terms, [relating to issues of HOA governance]. 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.[ii]

What message is being sent by this disturbing decision? To the public? To the homeowners in HOAs seeking the equal protection of the laws under the Constitution? To the national lobbying trade group, CAI, who can breathe easy with respect to any challenges to the constitutionality of the HOA legal scheme that  contains denials of fundamental rights and privileges?

Professor Randy Barnett wrote, speaking of justice and judicial legitimacy,

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[iii]  

And we must not ignore the effect of precedent on court opinions. Hansford and Spriggs found [that] the doctrine of stare decisis, itself, falls victim to the preferences of the judges. The closer the precedent was to the judges views, the more the precedent would be followed, and vice versa. Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges (p. 75).[iv]  Bad HOA laws abound leading to favorable anti-homeowner decisions.

And still we see “Equal justice under the law” emblazoned on the façade of the US Supreme Court building. It contains a major defect, a misleading fallacy,  and a presumption of supreme court infallibility [without error].  Bad laws — unjust laws — will not produce justice for all!  And that is just what we face in the HOA-Land Nation.

I have argued (2009) for a judicial system that adhere to the following:

Before we can decide, we must examine some of the myths and realities of the American judicial system.  First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law.  Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past.  In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure;   “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above.  This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.[v]

. . . .

So, in particular, went is wrong with the AZ  supreme court denial in Bendt?  A lot!

An amicus brief is submitted, and subject to approval by the Court and the parties, to advise the Justices in better understanding the conditions and factors relevant its opinion that it may not be aware of. The following is a summary of arguments presented in my amicus brief[vi] seeking the Court to review the petition in the name of justice for the homeowner, Bendt, and for all other citizens living n Arizona HOAs.

“The Hannaman 2002 study (NJ) was quite frank and revealing describing problems and complaint still in existence some 19 years later in spite of efforts by the self-proclaimed HOA experts and educators, national CAI. “

“[Referring to Nevada Supreme Court in Kosor v. Olympia Companies, 478 P.3d 390 (2020)]. Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.

“As our [California] Supreme Court has recognized, owners of planned development units ” ‘comprise a little democratic subsociety . . . .’ ” (citations omitted).” (Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205 (Ct. App. 2000) at “A. Public Forum”).

“Among its findings [South Carolina HOA study committee] were . . . While the Community Association Institute (CAI) and other private entities offer educational resources to homeowners and managers, state government cannot place the sole responsibility of educating homeowners and board members on a private entity.

“Although not presented by the Appellant where three plaintiffs who] are lawyers, and based on claims of false and inexcusable character assassination against Tarter . . . this Court has reasonable suspicion to remand the case for a determination the validity of an anti-slapp motion.

“This Court, or any court, cannot allow a group of individuals or organizations to create a devise in order to escape constitutional protections and enter into a contract, constitutionally valid in all other aspects, to form private local governments whose members remain citizens of this country as well as of their respective states. It, as it stands in regard to HOAs, makes a mockery of the Constitution and our principles of a democratic society.

“The free speech issues of limited-purpose public figure and of HOAs and social media as public forums with respect to political HOA governance issues have been raised and need to be addressed.

“As with Brown [v. Bd of Educ.], America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. In 1992 CAI dropped its 501(c)3 educational status for 501(c)6 trade organization so it could lobby state legislators.”

I cannot understand the Supreme Court’s denial of Bendt’s petition and the opportunity to rule or to further investigate these issues, by orders or by request to the Legislature — as it has so ordered in the past —  and thereby fulfilling its obligation to defend the Arizona and US Constitutions.  Instead, it seems that the Justices have allowed their opinions to be guided by the prevailing public policy favoring private government HOAs that are independent of the two Constitutions.[vii]

References


[i] See AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine.

[ii] Id.

[iii] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).

[iv] Hansford and Spriggs, The Politics of Precedent on the U.S. Supreme Court, Princeton Univ. Press (2006).

[v] See in general,  HOAs, justice, and judicial myth and precedent.

[vi] Staropoli Amicus brief Tarter  v. Bendt

[vii] See in general, The HOA-Land Nation Within America and Establishing the New America of Independent HOA Principalities.

Staying the course to apply the US Constitution to HOA-Land

In my long involvement in HOA reform legislation I’ve suffered defeat after defeat culminating in this week’s AZ Supreme Court denial to hear Tarter v. Bendt and address my amicus curiae brief. The brief raised deep questions arguing that state legislatures and judges demonstrate an unconscious pro-HOA bias as a result of years of an unopposed picture of the HOA legal scheme. And as such, erred in the courts’ decisions against Bendt.

But taking heart from the words of Winston Churchill,

Or even better, from WWII General Joseph “Vinegar Joe” Stillwell,” Illegitimati non carborundum (Don’t Let The Bastards Wear You Down).

But still, I managed to have some successes.

Several of you have received my Don Q Medal of Valor for your repeated efforts to expose and inform the public about the hidden side of HOA-Land, the side the national lobbying entity avoids like the plague. Over the years I’ve come to the conclusion that I’m the real personification of Cervantes’ fictional Don Quixote. I wrote:

 “The reality of the HOA ‘windmills.’ This is my statement on the rejection of my efforts to restore constitutional protections to HOAs by a society suffering from a decay and decline in ethical, moral, and democratic values.

 “For the most part, my analyses and warnings have been ignored by elected officials and politicians at all levels, by the public at large, and by a large majority of homeowners living in HOAs. So, it appears that like Don Quixote,  I am out-of-step with the reality of these times. But it doesn’t make me wrong!  Historians will judge.”

(See HOAs as ‘windmills’, Dec. 2020).

I am also disappointed by the failure of HOA advocates to rally around the injustice perpetrated on a homeowner by an upscale HOA and the courts.

Knowledge is power to stand up to CAI

CONTINUING  HOMEOWNER ENLIGHTENMENT, EDUCATION  &  REORIENTATION  SERIES

CHEERS  PODCASTS

Advocates and homeowners have failed to stand up to CAI because they, too, have been indoctrinated and have failed to acquire the knowledge and strategies to overcome their lack of credibility causing their lack of power.

“Blaming the wolf will not help the sheep much.  The sheep must learn not to fall into the clutches of the wolf.”  Gandhi.

Boards of directors need to be educated and reoriented on the principles of democracy, and on HOA constitutionality relating to violations of due process and the equal protection of the laws,  because 1) the national lobbying entity, CAI, has indoctrinated boards of directors, the legislators, the courts, and the public with its CAI School of HOA Governance program that contains just lip service to constitutional questions, and 2) HOAs are a form of local government not subject to the Constitution. 

This indoctrination, by teachings of The CAI School, of boards of directors and all HOA members  prevents them from recognizing and accepting the true nature of HOA reality.  Indoctrination “is the process of teaching a person or group to accept a set of beliefs uncritically.”  Since the teachings are all that the indoctrinated ever see, they assume the School presents a true picture of HOA-Land. The actual reality!  NOT SO!

The idea of the Continuing Homeowner Education & Reorientation Series is to find a way for the indoctrinated BODs and members to come into the “light” and attain enlightenment from the School’s conditioning practices.  If they were to do this, they would be able to see HOA-Land for what it really is.

CHERS will provide this needed opposing voice.  Listen to CHERS podcasts — 24 podcasts in 4 program levels of learning.  See also CHERS series.

CCHAL in Calif. stands up to CAI

The California homeowner activist group, CCHAL, with Marjorie Murray as its president is moving in the right direction.  In its email distribution urging homeowners to contact their representatives to OPPOSE SB 391, CAI is called to task and criticized for its support.

“’The Community Associations Institute (CAI) and the property managers (CACM) are still “stretching the truth’ about SB391 (to put it politely.) CAI and CACM keep publishing ads saying  ‘SB391 gives HOAs the right to hold teleconference meetings during an emergency…’ This is FALSE.”

We need more advocate leaders and homeowners to speak up strongly to force CAI to defend its statements, if they dare, or to shut up!  Silence only helps CAI to increase its stature before legislatures, the media, and the public. Victory is ours by not remaining silent!  

(See If only advocates would stand up to CAI).

CAI knows its defending the indefensible. Do you know that?

HOA Constitutional Government

How legislative Rules committees abort democratic HOA reform bills

In the interest of public education on the functioning of state legislatures, this paper presents information on the rules governing state legislatures — using Arizona as a representative example — that affect passing bills into law.  I focus on the Rules committee’s powers to obstruct the voice of the people, and how it can prevent — kill — HOA reform bills by the actions of the political party leaders.

The powers of the Rules committee are undemocratic and authoritarian  in nature designed to thwart, apparently, the folly of the voice of the people.  We see the same undemocratic, authoritarian powers granted to HOA boards to an even greater extent,  The national lobbying group’s promotion of the “business judgment rule,” and acceptance by the courts, is a prime example.[1]

Exhibit 1 details the Rules powers that can prevent HOA reform bills, and any other bill not liked by the powers that be, from a hearing and vote by the full chamber — by the people’s representatives. As I wrote earlier[2], Arizona’s HB 2052, a bill that has in reality been killed in the Rules committee after unanimous approval by the House and Senate government committees, is a prime example of this misuse of authority.

The Senate Fact Sheet “intro” paragraph misrepresents the content of the bill:

“Expands statutory restrictions on condominium unit owners’ association and planned community association (HOA) regulation of political signs to include signs related to certain community activity. Prohibits an HOA from prohibiting door-to-door community activity”.

Of the 8 listed “Provisions,” 2 are technical, 2 relate to political signs, and 4 — given a short sentence in the “intro” —  expand on HOA restrictions and prohibition’s protecting free political speech and expression, in the HOA public forum,[3] as curtained in my earlier “Senate Protects” posting.[4]

. . . .

The Arizona Legislature, and each and every state legislature, is  not a sovereign that can do no wrong, but has duties and obligations sworn to under oath “to establish justice . . . and secure the blessings of liberty” for the people of its state. It cannot demand respect but must earn it through good deeds.  Passing HB 2052 into law would be a sign of good faith that would earn the respect of the people.

Exhibit 1.  Arizona Legislative Council publications

“In the Senate, bills are usually not “held” in the Rules Committee for partisan or political purposes; bills which go into the Rules Committee are almost always reported out. In the House, the Chairman of the Rules Committee can “hold” (read “kill”) a bill simply by not giving it a hearing. (p. 52).

“The options of the committee chairman are a) Hear the bill and vote on it, b) Hear the bill but take no action, c) Assign the bill to subcommittee, d) Not hear the bill.  (p. 39-40).”

“The Role of the Rules Committee,”  State Senator Randall Gnant, From Idea to Bill to Law (2000). (As of April 2021).

“Each measure is assigned to the Rules Committee of the house through which it is progressing . . . . The Rules Committees assess the constitutionality of the proposed legislation. Unless they are withdrawn or discharged, all bills must pass the Rules Committee before they are heard on the floor. (p.41-42).

“An Active Calendar of the Committee of the Whole (so called in both houses) consisting of bills the Speaker or President selects for consideration by the respective Committee of the Whole (COW).

“A calendar consisting of all bills and other measures that have been reported from the committees. In the House this is called the “House Calendar.”  In the Senate it is called the “Calendar of the Committee of the Whole.” These calendars are simply a list of bills and other measures that are ready for further action by the full chamber.” (p.42-43).

Arizona Legislative Manual 2003 Edition, Arizona Legislative Council (2003). (As of April 2021).

Notes


[1] See, Reorienting the HOA board: business judgment rule (2020).

[2] See, AZ Senate protects HOA misconduct rejecting HB 2052; Arizona HB 2052 restores homeowner constitutional speech protections.

[3] See court holdings: Calif. holds HOA elections as protected free speech public elections (2019); NV supreme court upholds HOAs as public forums (2021).

[4] Supra n. 2, AZ Senate Protects.