I just viewed the live Arizona appellate court oral arguments in Tarter v. Bendt (CA-CV 19-0703 (Ariz.App. Div. 1 (2019)) and found it very informative. I have attended AZ SC oral hearings before but not an appellate hearing.
Bendt’s (defendant homeowner) attorney did an excellent job given the fact that she wasn’t the trial court attorney. I was very pleased to hear her arguments on limited-purpose public person that I missed over these years. Her rebuttal on free public speech was excellent! As you know I’ve posted a few cases on this issue that, in general, addresses the topic that HOAs are public forums subject to free political speech protections – you can criticize your HOA within limits.
A limited-purpose public figure is either:
“One who voluntarily becomes a key figure in a particular controversy, or one who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.”
Two examples of holding HOA directors and officers subject to free speech doctrine can be found in Dublirer v. 2000 Linwood Avenue Owners Assn (NJ Supreme Court, 2014) and in Cabrera v. Alam (Cal. App. 4th (2011).
This case, although involving an HOA president’s conduct, Tarter, who is also a lawyer, is really an issue of defamation by the president against Bendt. The argument by Bendt’s attorney is that the HOA president is a limited-purpose public figure as described above and there was no valid defamation according to law — no malice. Malice being defined as: knowing that it is false; or acting with reckless disregard for the statement’s truth or falsity.
It is very informative that anyone thinking of suing his HOA should watch the oral arguments and see how harsh and strict the court demands supportable and defensible evidence. And how your attorney must be able to respond to questions by the judges and arguments by the HOA.
A MUST VIEW AT TARTER. (45 minutes; the last 5 minutes present the public forum argument by Bendt’s attorney).
Ibram X. Kendi’s article, “The End of Denial,” appears in the September 2020 Atlantic Monthly. While Kendi argues that the upsurge in the denial of racism is a major step to ending racism in America, I can expand upon this mindset shift, this reorientation, to ending the denial of the unconstitutionality of the HOA legal scheme and model of local government. This mindset shift will produce the broad, substantial reforms to the current prejudicial view favoring authoritarian, private government HOAs.
Applying Kendi’s view to HOA constitutionality, Kendi urged “The American people [to] give policy makers an ultimatum: Use your power to radically reduce inequity and injustice, or be voted out”; and that “the American people [must] demand equitable results, not speeches that make them feel good about themselves and their country.”
I have proposed a plan to accomplish this HOA mindset shift,
“Restructuring the HOA-Land Nation requires a cultural change in in the way of life of members; and an appropriate change in attitude by state legislatures, the people and the home buying public.”
and describe the underlying HOA social and political culture,
“This HOA-Land Nation Within America white paper challenges, confronts, and exposes the self-interest bias by pro-HOA stalwarts, and contains authoritative documentation and evidence as well as statements used in this indoctrination process.”
The question that I posed to the policymakers, the constitutional pundits, and Arizona Legislature as far back as 2006 remains long unanswered:
“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”
Following Kendi’s lead, it is well beyond time for the denial of unconstitutional HOAs to end. It remains in the hands of Americans to demand that the state and local governments, the policymakers, and the constitutional pundits restore full citizenship to Americans living in authoritarian, private governments functioning outside the Constitution.
 “Ibram X. Kendi on ‘The End of Denial’”, Press Room, The Atlantic Monthly, August 5, 2020.
While there are many anecdotal claims of attorneys for HOAs acting unprofessionally and unethically, there are sufficient instances documenting such conduct. I have encountered and witnessed some myself. Few have been charged to my knowledge.
The most common, in my experience, is a violation of civil court procedure where the attorney churns the account, seeks many continuances, and raises dubious claims based on the extension of commonly accepted legal doctrine and terminology. Fortunately, I am not an attorney and need not concern myself with extending “professional courtesies” to my opponents.
The questionable conduct I am addressing can be found in federal rules and in various state 1) supreme court Rules of Professional Conduct, usually under Rule 42, E. R. 1.13, Organization as a Client, and 2) under Rules of Civil Procedure, Rule 11(b), Signing pleadings . . . Representations to the Court.
Rule 11(b) states (emphasis added), in short,
“By signing a pleading . . . the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
“[I]t is not being presented for any improper purpose . . . or needlessly increase the cost of litigation . . . and other legal contentions are warranted by existing law or by a nonfrivolous argument . . . the factual contentions have evidentiary support . . . the denials of factual contentions are warranted on the evidence.”
Rule E.R. 1.13 states (emphasis added), in short,
“(a) A lawyer employed or retained by an organization [HOA] represents the organization acting through its duly authorized constituents [the BOD].
“(b)If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action. . . that is a violation of a legal obligation to the organization [directors duties for example], ora violation of law . . . the lawyer shall refer the matter to higher authority in the organization.”
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I am quite pleased with the opinion by the Arizona Appellate Court in ArizonaBiltmore Hotels Condo Assn v. Conlon (CACV 18-0709, June 23, 2020). This involved case of over 10 years, multiple parties, and 3 lawsuits dealt with a conflict of interest by the association’s president. He also owned several properties (a dual role conflict) subject to claims of who would get parking lot rental income.
My point of interest lies in the Court’s inclusion of a statement by the attorney for the association president in the 2013 lawsuit and used as evidence in the current case. Here we find a highly regarded law firm standing by its obligations under professional conduct and certification to the court, as above.
The president hired Cheifetz, Iannitelli & Marcolini, CIM, (now Iannitelli Marconi) on behalf of the association. “CIM soon raised concerns about the merits of the Association’s lawsuit and shared those concerns in a letter to [the president]” who did not pass the concerns to the board. As required, if CIM believed that there were serious concerns, it brought their concerns to the board a year later.
Now removed as president and still a director and still owner of the TCG firm in conflict, the Courted quoted CIM’s position in this president gone wrong case.
The 2013 Court found the director guilty. It held “that [he] both breached his fiduciary duties and negligently misrepresented facts to the Association . . . controlled the information and did not make full and necessary disclosures.”
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FYI — The “Cheifetz” above is none other than Steve Cheifetz, former CIM manager now retired, with whom I’ve had the pleasure of knowing and exchanging views on HOA law and cases. He worked closely with Jonathan Dessaules, another outstanding Arizona attorney taking on homeowner cases.
On May 21st, after a long interruption due to the COVID-19 lockdown, the Arizona House passed SB 1412 by a unanimous vote of 11 – 0 in favor. GREAT! It joins California’s SB 323 passed into law last year.
Colorado’s HB 1200,[i] brought to my attention by journalist Ruthy Wexler, is an outstanding bill that provides for the long ignored, not my job, state oversight of HOA violations. It is a measure that provides the constitutional protections against depriving “a person of property without due process of law” and against denying “the equal protection of the laws.” These protections have been denied by the HOA “constitution,” its CC&Rs. Although a private contract, these protections cannot be waived.
HB 1200 is a much more protective bill of homeowner rights and freedoms as was introduced in Arizona in 2006 and adopted in the face of stringent opposition by CAI. CAI then proceeded in 3 court cases over 4 years to have the statute declared unconstitutional and have the ruling applied to all Arizona HOAs. It almost won but the Arizona Supreme Court denied it precedent value and in 2011 the statute was amended to handle CAI’s claims of unconstitutionality. It is in operation today under Arizona’s real estate department.
I was actively involved in the creation of this Office of Admin. Hearings adjudication of HOA disputes and in the defense of its constitutionality.[ii]
The role of CAI, as presented above, should not be taken lightly. Strong and active homeowner support will be necessary to carry this bill to law. I commented on former Colorado Senate President Morgan Carroll’s book:
Yes, there have been champions of HOA reform, but advocates fail to realize that these legislators must buck the powers that be at the legislature and win over the votes of a majority of other legislators. And this takes outcries by many people, not with gripes of “I wuz wronged!” but with valid arguments as to why HOAs are wrong for the state and the general public well-being. And how to fix these wrongs.[iii]
Take heed Coloradans and get behind the sponsors today!