Will AZ Supreme Court address broad HOA issues of constitutionality?

As we approach an October 5th decision to decide to hear the Tarter v. Bendt defamation case[i] that raises free speech and limited- purpose public figure issues, I am hoping that the Court will address the real-world widespread misinformation regarding conditions and the legal status of homeowner associations statutes. This investigation by the Court is essential for a just and fair decision in the defamation lawsuit by an HOA president and attorney. Questions of failing to act in good faith and an abuse of the law by the plaintiff attorney with respect to filing a strategic lawsuit against public participation (SLAPP) was raised in my amicus brief.

This is not an ordinary defamation lawsuit but one involving the actions and conduct by the plaintiff in his capacity as the HOA president  and in the context of matters of HOA governance. In the recent Nevada Supreme Court opinion in Kosor,[ii] the Court held that “HOAs as public forums and the president as a limited-purpose public figure” and further held that an HOA “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”

The decision by the Arizona Court will have widespread repercussions and consequences not only for Arizona, but for HOAs  nationwide affecting  statutes in every state. The legitimacy of a democratic country rests on just and fair laws for the people, as Professor Randy Barnett wrote,

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]

Since the context of the lawsuit relates to the legal status  and constitutionality of the HOA model of government, and to the statutes and CC&Rs “constitution” creating private contractual governments, did Bendt receive justice with a $500,000 award for the HOA president’s “pain and suffering? As applied to HOA statutes and Acts, will this Court heed US Supreme Court Justice Sotomayor’s dissent on the failure to uphold the Constitution?[iv]

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny . . . . Because the Court’s failure to act rewards tactics designed to avoid judicial review . . . . 

“To circumvent it [the Constitution], the [Texas] Legislature took the extraordinary step of enlisting private citizens to do what the State could not . . . .  It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry . . . .”

This case must be remanded to the trial court for consideration of the impact of HOA bias on the decision against Bendt.

Notes


[i] See HOA limited-purpose public directors and officers; The continuing saga of Bendt and public speech in HOAs; Pro Se Bendt amicus brief accepted by AZ Supreme Court.

[ii]  Kosor v. Olympia Companies, NV No, 75669 (Dec. 31, 2020).

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

[iv]  Whole Woman’s v. Austion Reeve Jackson, 594 U. S. ____ (2021) Sotomayor R, J., dissenting, Supreme Court of the United States, No. 21A24 [September 1, 2021]. (Abortion case).

Attorney abuse sanctioned: why not HOA attorneys?

This US district court opinion[1] sanctioned lawyers who

“abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry.”

This opinion imposed   

“monetary sanctions on nine Trump attorneys was that it was so long in coming  . . . made outlandish claims of election fraud in Michigan and other key battleground states, all of which were roundly rejected by every court that considered them.”

 What has this case to do with HOA attorney conduct? Plenty!  Just read the judge’s opinion (pages 1 – 5) and see why. The highly relevant opinion that can be applied to the conduct of many HOA attorneys:

“Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable. . . This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things.”

Be sure to read the footnotes that further explain the justifications!

Furthermore, in response to intervenor, the City of Detroit’s  charges of violations of Rule 11, civil court procedures, that requires the attorney to certify that the lawsuit was not for “an improper purpose”, was not “well-grounded in law, because the factual allegations could not support Plaintiffs’ claims.”   You may recall my arguments on violations of Rule 11[2] as well as Rules of Professional Conduct, “candor to the tribunal (telling the truth)[3].

This country needs  more cities and towns, like Detroit,  to stand up to attorney abuse of their obligations to the judicial system. We need state bar associations to pursue claims of abuse! We need to stop the attorney claims of “professional courtesy” who fail to raise these issues on behalf of their homeowner clients!

Notes


[1] Timothy King et al. v. Gretchen Whitmer et al.,  No. 2:20-cv-13134  Aug. 25, 2021).

[2] See HOA members fail to invoke their strongest weapon — Rule 11, representations to the court.  

[3] See in general, Is CAI’s ‘lack of candor to the tribunal’ intentional? and Misrepresentation: CAI comes with unclean hands.

 

“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.

In Kosor the NV appellate court upholds HOAs as public forums

In January of this year I posted the Nevada Supreme Court’s opinion on HOAs as public forums and the president as a limited-purpose public figure (NV supreme court upholds HOAs as public forums).  Last month on an appeal (Olympia v. Kosor, No. A-17-765257-C (Nev. Ct. App. 2021) from the remand, to  let the trial court hear the case on above issues, the appellate Court upheld the supreme courts findings and opinion.

The tremendous constitutional question of free political speech on issues of HOA governance was upheld. Finally! In doing so, the Court also held, citing several cases that [note 1],

  • [the HOA]  “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”
  • the Nevada Supreme Court has found the [the HOA] Board to be in the nature of a quasi-government entity largely paralleling the powers, duties, and responsibilities of a municipal entity and its meetings similar in function to a governmental body.
  • homeowners’ associations open meetings are public forums as such associations play ’a critical role in making and enforcing rules affecting the daily lives of [community] residents.’”  
  • “the HOA meetings at which Kosor made certain of the statements at issue were ‘public forums’ … because the meetings were ‘open to all interested parties, and … a place where members could communicate their ideas. Further, the…meetings served a function similar to that of a governmental body.”
  • In deciding this Motion, this Court also concludes Plaintiffs at least constitute limited-purpose public figures.
  • The test for determining whether someone is a limited public figure includes examining whether a person’s role in a matter of public concern is voluntary and prominent.” [as is the case with HOA boards and presidents]
  • the issues Defendant raised involve efforts to encourage homeowner participation in and oversight of the governance of Southern Highlands, “an inherently political question of vital importance to each individual and to the community as a whole.”

. . . .

Your HOA cannot stop your free speech if you argue Kosor! Just be careful about making harsh, accusatory statements that violate elements of defamation that will  defeat your free speech.

NOTE 1. Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205, 214 (2000); Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209, 214 (1983); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 91 (2002).

The writing is on the wall for HOA reforms

Although the Arizona Supreme Court has not yet decided to hear Tarter v. Bend (CV 21-0049), my 44 page Pro Se amicus curiae brief is a matter of public record, regardless.  The case about a defamation suit by the HOA president, also an attorney and a limited-purpose public figure, raised constitutional issues of public speech with respect to questions of HOA governance. 

Selected excerpts follow.

As with the issue in Dombey (Dombey v. Phoenix Newspapers, Inc) . . . failing to present the question of Tarter’s status as a possible public figure denied the jury from considering the issues of protected free speech on public issues.

Kosor (NV) was sued on the basis of his criticism  and distribution of a pamphlet and letter at a board meeting seeking a seat on the board of directors.

“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.”

The impetus behind this view can be laid to the heavy lobbying of state legislators, judges, the public and the media by the Community Associations Institute (CAI). From its 2016 white paper,

“Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. . . . Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement.”

In response to my Arizona Supreme Court pro se amicus brief in Gelb v. DFBLS (CV-10-0371-PR) CAI attorney Jason Smith wrote,

“It is clear from the that the amicus curiae [referring to me] simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”

[I called to the Court’s attention a question of a SLAPP lawsuit against Brendt.]  The issue of an HOA SLAPP lawsuit against a member is in the interest of general public and of statewide importance, and also of national concern, the impact on community associations is certainly substantial. This Court should, sua sponte, consider Tarter’s legal action as a HOA politically motivated strategic lawsuit  against member participation.

I urge the Court to apply the long overdue correction  of  Plessy v. Ferguson by Brown v. Bd of Education to the long overdue and needed corrections to the unconstitutional HOA legal scheme.  As with Brown, 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.