ASU Law ignores content-neutral free speech for HOAs

Much to my disappointment, the ASU Law library has not responded to my 3 emails[i] requesting an HOA advocate resource listing on its Homeowner Associations resource webpage. Under Books CAI attorney member Scott Carpenter is listed (reference is to an AZ Bar Assn booklet on HOA law, and under Websites AACM (community manager association) is listed.

Both of these listings carry the lobbying view found in the CAI School of HOA Governance.[ii] Neither address constitutional issues nor do they contain the views of constitutional lawyers. There is a constitutional issue at play as I informed the librarian and the Law School Dean  — the illegal bias toward one party’s content while denying another party’s material content. The law requires content-neutral free speech which I believe is being violated by ASU. So, as I proposed, remove these listings, or add my books and web pages or those of other homeowner rights advocates.

How can law students from the prestigious Sandra Day O’Connor School of Law obtain access to material information concerning the long ignored HOA legal scheme that, apparently, ASU does not agree with?  Change cannot occur in the blind! There cannot be change without change!

PS:  I am waiting for a response from The Uniform Law Commission (ULC) that is drafting updates to UCIOA. Its Scope Committee is reviewing my request for ULC study of my proposal for an HOA Member Bill of Rights; it will meet again in January.

NOTES


[i] Copy of email letter

gKS256@nyu.edu

To:  Beth DIFelice (beth.difelice@asu.edu)

CC: ‘douglas.sylvester@asu.edu’; Diana.Bowman@asu.edu

November 11, 2020

Email letter

Beth DiFelice

Director ASU Law Library

Sandra Day O’Connor College of Law

Arizona State University

[ii]  The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

Is AZ ADRE violating 1st Amendment free speech on HOA public issues?

Regarding Arizona’s real estate department’s (ADRE) promotion of the HOA special interest organizations, CAI and AACM, in its Resources category on its HOA Due Process web page, there are no opposing homeowner rights views on HOA-Land.  Nada!

These pro-HOA groups sustain, and continue to offer and promote the same failed arguments and “solutions,” of the past 23 years in Arizona. They are on record opposing due process and the equal protection of the laws for HOA members. It seems that they have adopted the view that the goals and objectives of the state, meaning the HOA government, supersedes the individual rights of the people, the HOA members. (See CAI manifesto: CAI’s plan for HOA-Land in America, a commentary on CAI’s “white paper.”

At a meeting with ADRE I argued for ADRE to remove CAI and AACM from or to add references to opposing views, well supported by evidence, to its web page.  I suggested that my Constitutional Local Government or HOA Constitutional Government would provide a factual based view, and give the general public a “full disclosure” of life in HOA-Land.   Let’s be fair! Let the homeowner choose after he has all the facts and not those of self-interested private vendor groups.  This would be in keeping with ADRE’s mission “to protect the interests of the general public.”

If we are to make progress for HOA members, the policymakers move past what CAI and AACM have been saying in their voluminous promotional and marketing sayings — like its Factbook — and to what the CAI/AACM members are actually saying before state legislatures and the courts. The contradictions between the two are stark; one is talk, the other is action, as outlined in the materials presented to ADRE.

 

I am awaiting the decision of the ADRE Commissioner.  It has been a month — a reasonable time to make two line changes on their web page — since I first contacted ADRE with the above request to remove the vendor organizations, or to add homeowner rights websites as a balanced recommendation.  I hope that ADRE will act very quickly on this important request granting free speech to all sides of the controversial HOA issue.

The US Supreme Court decision in Con Ed v. Public Service Comm’n of NY (447 U.S. 530 (1980)) sheds some important light on ADRE’s unreasonable delay in acting on my request, which can only be interpreted as a denial.  In Con Ed a state agency prohibited the inclusion of political material by a public utility company in its monthly billing statements.  Among other things, the Court held: (my emphasis)

But when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited merely because public officials disapprove the speaker’s views.” (Part III(A)).

As a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . ..  To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth. (Part III(B)).

The denial of opposing homeowner rights website inclusion on its Resources web page would constitute a First Amendment violation.

Homeowners can play a significant role by speaking out.  Write about the quality of advice received from these organizations as to resolve problems with your HOA.  Was it helpful?  Were you satisfied? Please be sure to provide solid evidence – solid documentation – to support your request for help; no whining, no crying we was robbed.

Address these matters to Dan Gardner (dgardner@azre.gov), and send a copy to me at info@pvtgov.org with complete confidentiality.

AZ legislature fails to remove invalid statutes from its ARS web page

“Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”[1]

While the SB 1454/HB 2371 redux bills SB 1482 and HB 2695 appear to be dead this session, there is still no bill to repeal the amended statutes in Sess. L. Ch. 254 (2013);[2] those declared unconstitutional and invalid by the Arizona court, and agreed to in a settlement agreement with the Arizona Legislature.[3] The Legislature is intentionally misleading the public as to the legitimacy of the Arizona Revised Statutes in what appears to be a slap at the separation of powers doctrine – we will ignore the ruling of the court.

The following was sent to the Arizona legislative leaders (March 19, 2014 email).

“Dear Legislators,

 “I cannot understand why the SB 1454 statutes declared invalid, and agreed to in a settlement agreement, are not being repealed?  ARS show them as valid laws, without any annotation, which misrepresents their validity to the public.

 “I cannot understand why the HOA HB 2371 redux bills this year, HB 2695 and SB 1482, provide for their repeal contingent on the passing of these omnibus bills?  There is no ‘standalone’ bill to set the record straight.   These invalid statutes cannot remain on the books for another year!”

 

The following was sent to Secretary of State Bennett.  (March 21, 2014 SOS form).

 “Sess. Laws Ch. 254 (2013) was declared unconstitutional in court and certain statutes were found to be invalid. See Staropoli v. State of AZ, CV2013-009991.  An agreement with the AG representing the Legislature was signed and accepted by the court.

“Yet Ch. 254 shows the invalid statutes and there is no annotation that certain statutes are invalid. THIS MISLEADS THE GENERAL PUBLIC!

 “I believe Session Laws and ARS must be corrected to reflect the true status of the statutes.”

 

In HOA SB 1454 progeny: passing SB 1482/HB 2695 would be an act of tyranny by the AZ Legislature (February 25, 2014), I wrote:

“No choice to repeal statutes found unconstitutional

“These statutes were declared unconstitutional by agreement with the AG, representing the Legislature, and an order by the court accepting the settlement agreement.  However, the Arizona Revised Statutes (ARS) still shows these statutes as if they were valid and enforceable laws, which is deceptive to the public accessing the official Legislature’s website, ALIS. There are no annotations to advise the public otherwise.

“The repeal of these unconstitutional statutes is conditioned upon bill approval. A failure to pass both bills will still leave these statutes on the books. There is no stand-alone bill that repeals these unconstitutional statutes as would be expected by a legitimate legislature acting with integrity as representatives of the people, and not as representatives of the special interests. Apparently the defiant eight-hundred pound gorilla, the special interest HOA stakeholders (CAI, AAR, AACM and AHBA),  has flexed its muscle, and the sponsors have reacted accordingly.”

This is incredulous! It is unthinkable that legislative leaders would succumb to the shadow government of the HOA stakeholder special interests, and openly mislead and misinform the public! Furthermore, after being given sufficient notice, the failure to correct ARS can only be viewed as intentional.

What other rational explanation can there be? Perhaps the participating legislator – special interest organization ALEC (American Legislative Exchange Council) was involved? People for the American Way[4] describes ALEC as,

The American Legislative Exchange Council, is a one-stop shop for corporations looking to identify and cultivate friendly state legislators and then work with them to get special-interest legislation introduced and passed.

The American Legislative Exchange Council, serves as a voice for corporate special interests in state legislatures across the country. Its corporate executives, lawyers and lobbyists, along with member legislators, draft, lobby for, and secure passage of a wide array of bills designed to promote corporate interests.

For more information about ALEC see United States of ALEC. (Bill Moyers 30 minute video in 2012 on ALEC. AZ is right up front.)

References

[1] W. B. Allen, “Machiavelli and Modernity,” The Prince, Niccolo Machiavelli, p. 108.

[2] http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/51leg/1R/laws/0254.htm&Session_ID=110.

[3] http://pvtgov.org/pvtgov/downloads/order-final.pdf.

[4] http://www.pfaw.org/media-center/publications/alec-arizona-voice-corporate-special-interests-halls-arizonas-legislature.

AZ HB 2371 allows unlicensed managers to represent HOAs in disputes

This video covers the Arizona Senate GE committee hearing on a bill that would allow unlicensed HOA managers to represent HOAs.  It shows the AZ legislature abdicating and supporting HOA-Land rule over democratic rule, and over the Constitution. It shows a banana republic, “I see no problems,” mentality.

See Arizona’s HB 2371 empowers unlicensed HOA property managers to avoid UPL.


Here are my comments at several points in the video.

My opening statement

Hi, I’m George Staropoli, also known on the internet as HOAGOV.   I am once again, reluctantly, before the camera with another HOA legislative documentary. My material comes from events at the Arizona Legislature, and from the legislators themselves.

Viewers will be alerted to the following comments at appropriate points in the video. They are provided to assist you in understanding of what’s really going on.  With this in mind, I strongly recommend that you take time to read my HB 2371 Commentary (on this date) on my website before continuing — the link is now being shown.

This video will also be posted to my HOA Constitutional Government website along with my detailed comments — the link is on the screen.

Let’s view the hearing . . .

Opening comments by Ugenti:

You just witnessed the sponsor’s “opening statement.”  Note her motive for the bill: Let me quote her, “Every year there is a plethora (many, many) of personal HOA legislation . . . as well as industry HOA legislation.”  She stated that she combined all those bills “working through a stakeholder process and allowing the stakeholder process to filter the proposed legislation   . . . representing a consensus from the AZ realtors, and AACM (AZ Association of Community Managers, the beneficiary of this bill).”  She further added “to spare the members from the agony of voting up or down on personal pieces of legislation.”

Now, what was she saying?  First the “personal” bills come from homeowners while the other legislation is “HOA industry legislation.”  She put the bills through a stakeholder process and used the process to filter the bills. She failed to say, however, that no homeowner advocates participated in this stakeholder filtering process, which was brought to light in her House GOV testimony, and not denied.

Ugenti said nothing  about fixing HOA problems and making HOAs better for everyone, especially the real stakeholders — the homeowners.  Not even entertaining an amendment to address issues of substance relating to constitutionality, fair and just laws, and of other homeowner concerns as emailed to her.

Now let me explain that in her earlier statement to the House GOV committee, she also said that she wanted to avoid any controversial bills.  But, think about it.  If there is serious opposition, based on authoritative sources, wouldn’t that that create a controversy?  So, her choice was to deny any opposing views, and only pick the special interest agenda – the stakeholder agenda.  Isn’t Ugenti failing to understand that these problems are not singular or personal to just one homeowner?  I mean, after hearing more of the same from others and the media, you would think she could take a hint!  Apparently not!

Homeowners appear to have been given short rift, and have been placed “at the bottom of the food chain,” defenseless and being gobbled up by everyone else.  And here I thought our representatives are supposed to represent the people, not the moneyed special interests.

Art. II, Sect. 2, of the AZ Constitution states, “Governments . . . are established to protect and maintain individual rights.”  Did I miss something?

Furthermore, in an outright act of favoritism toward the special interests, as shown in the video, Ugenti asked for questions that she or the stakeholders can answer.

Let’s return to the video . . . .

Homeowner email:

Please understand what has happened in this staged scenario with this constituent email, which the legislators viewed as having a “personal issue” with her association  —  homeowner owners only bring personal problems while the special interests deal with non-personal agendas.

With the several email dealing with issues and problems of substance, why was the single email chosen for airing before the committee?  Why? Because it serves to reinforce the sponsor’s false argument that homeowners only deal in personal issues, which justifies her leaving out the homeowners from serious, authoritative HOA industry specialists! There was no mention of the non-personal, substantive constitutional issues brought to the attention of the legislators in my emails and commentary, or in two other homeowner advocate emails that I have personal knowledge.  Nothing! Silence!  Not a word!

The legislators “hear no evil, see no evil, and speak no evil.”

Let’s return to the video . . .

 

Conclusion

You have now witnessed another episode of “the unspoken alliance of no negatives about HOAs.”  Did you hear any of the objections that were emailed to the committee? NO!   You did not hear that the bill would allow unlicensed HOA property managers to represent HOAs in small claims court, or before an administrative law judge at the Office of Administrative Hearings?   Did you know that even licensed paralegals are not allowed to represent others?  Did you know that the current law applies to all hearings from all agencies before OAH?

Don’t tell me that the legislators, AACM, CAI, or the sponsor of  HB 2371 don’t know about the 2012 AZ Supreme Court opinion on HOA managers  engaged in the unauthorized practice of law, and the decision against for numerous UPL violations against one CAI/AACM member?  C’mon!  The legislators were sent copies of these decisions.  The viewers of the hearing video would not think any such events against unlicensed mangers had occurred.  In court, hiding exculpatory evidence (evidence in favor of the defendant) is a crime!  But, apparently it’s OK in the legislature.

And rather than do what is just, fair and reasonable, and that is to require proper licensing for managers if they are being allowed to represent HOAs, HB2371 is silent on education!

What we have here is a special law for special private entities, without even a whisper of any legitimate justification.  The bill is an unconstitutional special law violating the AZ Constitution, ART II, section 13, which states, “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”  In other words, no special laws for special people are permitted.

Section 32 states, “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.”   Where are the “express words” in this bill to override the Constitution?

What you have witnessed is the homeowner, the real stakeholder, has been cut out from the legislative process. What we have here is legislative support, cooperation, entwinement, and a symbiotic relationship between the state and the HOA, thereby making good cause for HOAs to be declared arms of the state, or state actors, subject to the 14TH Amendment protections.

It must still pass the Rules committee and the final vote of the entire Senate before becoming law.  Passing this bill into law would be unconscionable!  

WELCOME TO THE NEW ARIZONA OF HOA-LAND