Can your HOA board and managers pass this proposed Arizona HS graduation civics test?

Two amendments were submitted to the Arizona Legislature for the new session, SB 1029 and HB 2064, adding the following requirement for HS graduation in Arizona.

 

ARS 15-701.01(A)(2)

BEGINNING IN THE 18 2016-2017 SCHOOL YEAR, THE ACADEMIC STANDARDS FOR SOCIAL STUDIES SHALL INCLUDE A REQUIREMENT THAT, IN ORDER TO GRADUATE FROM HIGH SCHOOL OR OBTAIN A GENERAL EQUIVALENCY DIPLOMA, A PUPIL MUST CORRECTLY ANSWER AT LEAST SIXTY OF THE ONE HUNDRED QUESTIONS LISTED ON A TEST THAT IS IDENTICAL TO THE CIVICS PORTION OF THE NATURALIZATION TEST USED BY THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES.

Will your board of directors be able to pass this test?  How about those CAI trained managers?

The  test and acceptable answers can be found at http://uscitizenshiptestguide.com/text/sampletest.html.

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Published in: on January 11, 2015 at 11:44 am  Comments (3)  
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Will Arizona allow HOA covenants to dominate state laws?

Jan. 3, 2015 Dear Arizona Senate President Andy Biggs,

You have always been a firm supporter of OAH adjudication of HOA disputes, and I find myself asking, once again, for your support to maintain the integrity of the Office of Administrative Hearings.  The opposition of CAI (“The Community Associations Institute (CAI) is OPPOSED to [the 2014] Senate Bill 1334 (HOAs; hearings; attorney fees).)” to this bill is appalling and unconscionable since the bill attempted to prevent HOAs from taking a giant step toward the status of an independent principality not subject to state laws. (See Establishing the New America of Independent HOA Principalities, 2008)

In its effort to silence Bill Brown, an outspoken critic of his Teravitta HOA government’s policies and actions, CAI attorney firm Ekmark & Ekmark redrafted the CC&Rs in disregard to state law and judicial holdings, as I believe he so informed you.  As occurred with the 2006 OAH enabling act, which was repeatedly attacked by the CAI member firm of Carpenter, Hazelwood, CAI has taken the position that a private contract can override state laws. I am not talking about a surrender or waiver of rights and privileges, but state law!  This is a slippery slope to a more firm status of HOAs independent principalities indeed, without any government oversight.

Such an audacious slap at Arizona’s constitutional system of government cannot be allowed to stand! It is an act violating the constitution as the supreme law of the land. Today, the courts have allowed HOAs to modify municipal ordinances without any state oversight and approval. It is long held doctrine that HOA covenants that are unconstitutional or violate public policy, or that are unreasonable or arbitrary and capricious are invalid and notwithstanding (See Sec. 3.1, Restatement of Property: Servitudes). Now, this doctrine has been intentionally and deliberately challenged and ignored by attorneys of the business trade entity, CAI. This brazen act, placing Arizona on a dangerous slippery slope, is in defiance of the Arizona Constitution and state laws and cannot be allowed to stand.

 The bill can be resubmitted as is with a small change to the last paragraph.

 “41-2198.01.

“J. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS AS  DEFINED IN SECTION 33-1202 OR THE PLANNED COMMUNITY DOCUMENTS AS DEFINED IN SECTION 33-1802, THE ADMINISTRATIVE HEARING OFFICER AND THE DEPARTMENT MAY NOT MAKE AN AWARD OF ATTORNEY FEES TO THE ASSOCIATION  ANY PARTY IN ANY MATTER FILED7 PURSUANT TO SUBSECTION B OF THIS SECTION.”

(Link to SB 1334 (2014): http://www.azleg.gov/legtext/51leg/2r/bills/sb1334s.pdf.)

FYI, I provide the following links to materials and supporting documents of CAI’s hypocrisy, saying one thing to the policy makers and another to the public.  Please read them, for they reveal CAI’s policy that HOAs should be treated as independent principalities while seeking legislative support for this secession from the State of Arizona.

  1. CAI: the HOA form of government is independent of the US Constitution
  2. Will the real CAI standup: its contradictory beliefs, pronouncements and goals
  3. Misrepresentation: CAI comes with unclean hands

Please sponsor this modified SB 1334 in the name of justice and the Constitution of the State of Arizona. I thank you for your earlier support of HOA reform bills. Respectfully, George K. Staropoli

Published in: on January 4, 2015 at 11:14 am  Comments (3)  
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HOA constitutionality will cause the collapse of CAI

Ever wonder why CAI so vehemently fights the view that HOAs are indeed mini-governments, or quasi-governments?  Its amicus curiae brief in Dublirer v. 200 Linwood Avenue[1]  is a meritless, desperate attempt to prevent the NJ Supreme Court from coming to the conclusion that as a government, the HOA election process must be constitutionally protected.  It failed. The Court upheld constitutional rights to a member’s free speech especially in regard to HOA campaigning.

CAI argued that HOAs are businesses and that business owners don’t have constitutional protections.  It practically begged the Court not to allow open public discussions of political issues, because the HOA would lose its privacy rights. Isolationist mentality!  It argued that constitutional protections are not needed because other mechanisms, like the business judgment rule, would handle disputes.  And, that election rights are not protected by the state constitution, but by the pro-HOA statutes and adhesion CC&R contracts.  To paraphrase a line from the movie, The Treasure of the Sierra Madre, We don’t need no stinkin’ constitutional protections!

Such statements made in court filings are astonishing!  It is a complete refutation and about face to CAI’s propaganda material made for public consumption.[2]  It repudiates our democratic system of government and the US Constitution!

What would cause CAI to argue such statements without merit before a state supreme court?  Maybe because CAI knows that if HOA constitutionality is accepted and HOAs are seen as state actors or made to become state entities, it would no longer control and dominate the industry.  All would be lost!

HOAs would not be lost as CAI has argued from time to time.  CAI would be lost!  It would have to rethink its public policies, its Best Practices, it training seminars, etc.  It would need to include such courses, which are not and never have been in the CAI vocabulary, understanding the Constitution and Bill of Rights, good local government, best city management practices, etc.

The path to substantive HOA reform legislation has always been on the basis fundamental principles, democratic principles of government, and the US Constitution.  The courts are beginning to see the error of their way.  And CAI cannot prevent the inevitable from happening — it’s just a matter of how soon!

References

1.    See CAI: the HOA form of government is independent of the US Constitution.

2.    See Misrepresentation: CAI comes with unclean hands and Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

Published in: on December 15, 2014 at 4:24 pm  Leave a Comment  
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From NJ Supreme Court Twin Rivers to Dublirer: HOAs are separate but unequal governments

In a parallel that can be made with Plessy v. Ferguson (163 U.S. 537,1896) and its enlightened reversal in Brown v. Bd of Education (347 U.S. 483,1954), the NJ Supreme Court’s opinion in Dublirer v. 2000 Linwood Avenue Owners (2014) accomplished the same necessary correction of its earlier opinion in CBTW v. Twin Rivers (929 A.2d 1060, 2007) with respect to HOA constitutionality.

In Plessy, the “separate but equal” doctrine was developed to uphold segregationist laws. In Brown, it was successfully argued that “separate but equal” did not apply to the education of black children and integrated schools were necessary.

(I have read the court filings and briefs in the following cases thanks to the people at the Rutgers Constitutional Litigation Clinic, Frank Askin, Director).

In Twin Rivers, addressing the one issue of many dealing with the equivalent of separate but equal free speech for HOA members, the Court found that alternate means of member free speech was available – that is, the alternate methods were separate but equal – and upheld the constitutionality of the HOA’s restrictions.  The HOA was not open to the public and was entirely a private entity and not a municipality (factual statement).

The trial court favored the HOA, while the appellate court favored the members. “In a published opinion, the Appellate Division reversed the trial court, holding that the Association was subject to state constitutional standards with respect to its internal rules and regulations.”

At the NJ Supreme Court,

Plaintiffs [homeowners] asserted that the community room policy denied them equal protection of the laws and unreasonably and unconstitutionally violated their right to access the community room on a fair and equitable basis. They sought temporary and permanent injunctions “to allow [p]laintiffs to utilize the community room in the same manner as other similarly situated entities.

They urge that political speech is entitled to heightened protection and that they should have the right to post political signs beyond the Association’s restricted sign policy. Plaintiffs further contend that the excessive fees charged for the use of the community room are not reasonably related to the actual costs incurred by the Association. Finally, plaintiffs claim that the State Constitution requires that the Association publish plaintiffs’ views on an equal basis with which the Association’s views are published in its newspaper.

The NJ Supreme Court held,

We conclude that the limited nature of the public’s invitation to use the property does not favor a finding that the Association’s rules and regulations violated plaintiffs’ constitutional rights.

We find that the minor restrictions on plaintiffs’ expressional activities are not unreasonable or oppressive, and the Association is not acting as a municipality.

In Dublirer,

The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.

So we see how the NJ Supreme Court recognized the de facto political government nature of HOAs, representing a shift in attitude from ‘HOAs are just businesses’ agreed to by its members to the need for constitutional protections. The Court essentially declared that the HOA’s restrictions in regard to campaigning were not separate but equal methods as used by the board itself.  Further, it appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.

To ensure that local community government works for the member-owners, shouldn’t due process protections and the equal protection of the laws under the 14th Amendment require judicial support and enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

NJ Supreme Court upholds constitution against HOA free speech electioneering violations

Those familiar with rogue HOAs have seen this occur time after time – board control of the electioneering process.   In, Dublirer, a NJ Supreme Court case, [1]

The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.”

Finally, a state supreme court said enough is enough and free speech in elections for members dominates the governing documents, and the state constitution prevails (This case was not filed under federal laws).

Under that approach, we find that the Board’s policy violates the free speech clause of the State Constitution. The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns. We therefore affirm the judgment of the Appellate Division.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.”

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values.

Essentially, members – and speaking with respect to member-owners — must be given equal access to the membership as long as the campaign does not excessively disrupt the “tranquility” of the community. Suitable means must be given to members to allow for free speech expressions. The HOA had argued, beyond technicalities that were dismissed, that members had no free speech rights.  Imagine that!  CAI’s description of HOAs as democracies was just contradicted!

The Court held,

“On balance, we find that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s right to free speech outweighs the Board’s concerns about the use of the apartment building. We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.”

It appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.  To ensure that local community government works for the member-owners, don’t due process protections and the equal protection of the laws under the 14th Amendment require judicial enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

As for CAI’s amicus brief, it denied free speech rights to homeowners, declared HOAs are businesses and members are like stockholders during board elections, and other non-constitutional methods were available so forget about applying constitutional law.  Sounds like a belief that HOAs are indeed independent principalities (See Establishing the New America: a new book).

CAI cannot allow HOAs to be treated as equivalent to state entities.  See Commentary posted here.

Note 1.  “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).

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