Judicial acceptance of HOA ex post facto laws

This 2002 Florida Supreme Court  case study reveals how the application of pro-HOA laws and, as a consequence, subsequent court decisions form the court’s opinion and rationale as related to the acceptance of HOA ex post facto laws and eminent domain takings.  This case, supporting such amendments as valid, touches on important constitutional questions of due procFL case studyess and the equal protection of the laws.

Unfortunately, the owners failed to raise these extremely important questions before the Florida Supreme Court. And to the detriment of homeowner rights advocates and HOA members, these questions are still not being raised in the courts.

Read the complete paper here.

Published in: on March 25, 2016 at 12:49 pm  Leave a Comment  

state legislatures rejecting HOA “ex post facto” amendments

The Idaho Governor was given a bill to sign, HB 511, that prevents HOAs from restricting rentals if the owner doesn’t agree with CC&Rs amendment.  If the CC&Rs did not have rental restrictions, the HOA cannot add one without the affected homeowner’s consent. A victory that applies ex post facto law restrictions, as set forth in the Constitution, to HOAs. This is a victory in which homeowner rights are restored on a case by case basis after being summarily denied by invalid and unconstitutional CC&Rs alleged contracts, with state legislators looking the other way.

Betsy Russell’s article in the Spokesman-Review[1] states that HB 511 declares,

“No homeowner’s association may add, amend or enforce any covenant, condition or restriction in such a way that limits or prohibits the rental, for any amount of time, of any property, land or structure … unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property.”

According to Russell a supporter of the bill commented,

 “It’s not an imposition on a contract,” he said. “That contract is being applied in ways never intended, never understood, that devalue the property by taking away fundamental rights to the use and enjoyment of that property after the purchase. That’s the question. Is it appropriate for them to take it away without the consent of the purchaser.”

Of course, the author presents the old refrain by an opposition legislator, “To me, you signed on to a deal, and now we’re giving you an out – that it doesn’t have to be enforced. That doesn’t make sense to me. I’ll be voting no.”  As I wrote in “CAI flexes its muscle[2]”, enforcing invalid contracts makes a mockery of the law.

Also in the legislative hopper, having passed the House, the Arizona Senate is ready to vote on another ex post facto restoration bill, HB 2382[3], that would prevent CC&Rs amendments from being enforceable if the affected homeowner does not consent to the amendment.  This bill is a much broader bill pertaining to any amendment that affects less than all members. The effect of an HOA ex post facto amendment could be an eminent domain “taking” violation as the owner is not compensated by the “takings” amendment, which would bring the HOA in line with constitutional government.

 Advocates must get in the faces of their legislators and remind them who they work for: We the People, not the special interests, and definitely not their political party!

 

Notes

  1. Senate narrowly backs legislation to keep HOA’s from barring AirBnB or other short-term rentals,” Betsy Z. Russell, The Spokesman-Review, March 20, 2016.
  2. CAI flexes its muscle in Congress arguing constitutional law and judicial review.
  3. Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.
Published in: on March 20, 2016 at 4:49 pm  Comments (4)  

Democracy in action: how your legislature functions

The following is an example of how to read between the lines to interpret legislative procedures and legislator motives.  In short, how legislators use the rules to obtain their goals.

Arizona’s HB 2382 has an excellent amendment that would allow CC&Rs amendments to become valid only if no homeowner affected by the amendment objects to the amendment.  It applies to situations where the amendments affects less than all homeowners, like those with golf course views or like those whose properties borders some physical landscape condition as a runoff ditch or access road, etc.  It would restore the constitutional protection against ex post facto laws or eminent domain takings by the HOA.  A limited but major plus for homeowners.

The bill passed out of the House and out of the Senate committee and was set to be placed on the Consent Calendar.  Since there were no amendments to the House version, legislative procedure allows a fast route to final vote by bypassing the COW (Committee of the Whole) step. A legislator can object to a bill being placed on the Consent Calendar, as happened to HB 2382, and must undergo COW debate and vote.  In COW, a bill may be amended, a “floor amendment,” as also happened here.

The amendment was simply a technical correction – remove comma, change “or” to “and,” etc.  This was the essence of the floor amendment to HB 2382. Normally, these technical corrections are handled in committee before going to the final vote process, or in some later session.  So, what gives?

My reading is that in order to stop the bill from becoming law the amendment, if accepted by the Senate, forces the bill to return to the House for confirmation of the amendment or to resolve differences in the 2 versions of the bill.  It allows further opportunity to defeat a bill.  It says something about the amendment sponsor’s motives.

Now, a rational person would say that here should be no problem with accepting technical corrections to a bill.  But, this is politics influenced by a dominant special interest lobbyist effort.  People have been known to change their minds.  Let’s see what happens.

In 2013, Arizona Rep. Ugenti got caught in playing fast and loose with the rules and got an HOA bill passed in the wee hours of the legislative session. The bill was successfully challenged in court and rules invalid.   See AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

Published in: on March 17, 2016 at 7:49 am  Comments (3)  

State Bar integrity: HOA attorneys do no wrong

Many of us have had anecdotal stories of unjust decisions by state bars that protect attorneys even in the face of point blank evidence of wrongdoing.  Some have had actual experiences, and are aware of documented decisions affecting others, of state bar rulings with the same astonishing and unreasonable results.  What’s the truth of the matter?  How do state bars work?

As an example of state bar procedures, let me use the Arizona Bar as an example. “A/CAP” is the designation of the first level complaint handler whose function is to screen calls and deal with written complaints. “ER” is a reference to an Ethical Rule of Professional Conduct. The Bar can apply sanctions or dismiss the complaint, or submit the complaint to the supreme court attorney complaint committee (in the judiciary) for handling.  It’s a two-step procedure. Here’s an email excerpt from a HOA member’s complaint, who had replied to the attorney’s answer..

 “Following A/CAP’s final determination finding no violation of the Rules of Professional Conduct and trusting A/CAP has diligently prescreened the information provided bar counsel alleging a conflict of interest (ERs 1.7 -1.10) . . . [provided] written notice to the respondent lawyer of the nature of the allegation . . . [obtained] a response which is copied to the complainant for comment and/or response to the bar’s request for additional information . . . .”

Here’s the Bar’s response email:

“Mr.xxx

 The emails you provided do not warrant reopening the file [sic].

 The HOA is represented by counsel.  The country club is represented by separate counsel.  If either of those attorneys thought there was a conflict, they would address the issue with each other and each of their clients.

 This matter will remain closed [sic].  You are of course free to return my phone call if you would like to discuss the matter.

Tom xxxx”

 Please note the basis upon which the Bar apparently decided the issue:  if the complaint were true, the alleged culprit attorneys would have addressed the issue in accordance with the Professional Rules of Conduct. But, isn’t that the nature of the complaint that they did not!   And whenever did you hear of an attorney telling the HOA that it did or will do wrong? (ER 1.13). Enough said about the State Bar’s integrity.

In my personal encounter with the Bar, I came away with the same conclusion:  whatever the attorney says is gospel truth, even if irrelevant.  In my case, the attorney complained about being late on assessments for a few months, causing trouble by demanding answers from the board, etc.  The attorney can do no wrong!  Case closed!

It is understandable that professionals who deal with the public will be subjected to wild allegations by parties simply seeking revenge on their attorney’s failure to get his desired results.  But, when the balance swings well over to protecting the attorney and not doing justice society has a problem.  The courts have a serious problem with the integrity of the judicial process. The lack of integrity of public-private state bars to do justice and the failure of the oversight state supreme court to monitor the integrity of the state bar process is appalling.

In 2009 I did a detailed analysis of Arizona’s Bar complaint handling for all attorneys, not just HOA attorneys (Will your State Bar HOA attorney complaint get results?).   It links to a detailed numerical analysis made more difficult by the sloppy recordkeeping by the Bar and supreme court.

Over 4 years only 15% of the complaints resulted in sanctions against the attorney.

Based on the large number of complaints filed and the nature of those complaints, one would reasonably expected a much higher percent of attorneys being sanctioned, especially HOA attorneys.

Published in: on March 9, 2016 at 9:07 am  Comments (2)  

Apple vs. FBI: is Apple politcally motivated?

Below is a copy of the 3 page actual court order, in relevant parts.  While the order includes modifying the device’s software to accomplish the task, if necessary, it clearly and explicitly narrows the search to one particular device.   The order does not require Apple to modify its operating system, iOS, for use by everyone else.  The control of that modified software remains in the hands of Apple who could then seal it away or “burn” it at Apple’s discretion.

Having been involved in the computer software industry for some 50 years — since the dawn of commercial computers and continuing to personal computers and smart phones of today, and having modified operating system software — Apple’s arguments are without merit.  In my opinion, Apple is playing politics.

 FBI

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. ED 15 – 0451M, Feb. 16, 2016

[PROPOSED] ORDER COMPELLING APPLE, IINC. TO ASSIST AGENTS IN SEARCH

Note:  The capitalization below appears in the actual court filing and was not added.

For good cause shown, IT IS HEREBY ORDERED that:

  1. Apple shall assist in enabling the search of a cellular telephone, Apple make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ . . . in obtaining access to the data on the SUBJECT DEVICE.”
  2. (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port . . . .”
  3.   Apple’s reasonable technical assistance may include . . . signed iPhone Software file, recovery bundle, or other Software Image File (“SIF”) that can be loaded onto the SUBJECT DEVICE. The SIF . . . will not modify the iOS on the actual phone, the user data partition or system partition on the device’s flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE.

 

 

APPLE 

Below is a copy of the Introduction section of Apple’s 65 page motion. Contrast Apple’s arguments that seem to be a response to issues not warranted by the order and raising issues that are under Apple’s control.  Apple’s opening sentence reads, This is not a case about one isolated iPhone,” setting the tone of Apple’s opposition of the order. Apple raises issues of forced speech – compelling a private entity to do something – in violation of the 1st Amendment. It broadens and extends the issue to that of modifying its software would imperil the rights of all owners having Apple’s iOS operating system.

 Furthermore, an apparent political motive of Apple comes forth by its criticism of the government for not first going to Congress to change the laws, as it so believes is necessary, and stifling public debate on the issues not warranted by the court order (see last quote paragraph below).

 

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

ED No. CM 16-10 (SP), Feb. 25, 2016

APPLE INC’S MOTION TO VACATE ORDER COMPELLING APPLE INC. TO ASSIST AGENTS IN SEARCH, AND OPPOSITION TO GOVERNMENT’S MOTION TO COMPEL ASSISTANCE

This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.

 There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public. . . . But rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests . . . .

 The order demanded by the government compels Apple to create a new operating system—effectively a “back door” to the iPhone—that Apple believes is too dangerous to build.

 This would make it easier to unlock the iPhone by “brute force,” trying thousands or millions of passcode combinations with the speed of a modern computer. In short, the government wants to compel Apple to create a crippled and insecure product.

 But rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests, potential ramifications, and unintended consequences presented by the government’s unprecedented demand. And more importantly, by invoking “terrorism” and moving ex parte behind closed courtroom doors, the government sought to cut off debate and circumvent thoughtful analysis.


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The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community and does not constitute legal advice or opinion. We perform legal research and case analysis services, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in any report, finding, recommendation or any communication, or linked to this web site and its associated sites. No document prepared by HALRIS or George K. Staropoli is to be considered a legal document to be filed in a court or in a legal proceeding. Nothing provided by HALRIS or George K. Staropoli should be used as a substitute for the advice of competent counsel. George K. Staropoli and no person associated with HALRIS, AHLIS, or Citizens for Constitutional Local Government are attorneys nor are employed by an attorney.

Published in: on February 27, 2016 at 8:22 am  Leave a Comment  
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