State legislatures must be held accountable for dereliction of duty

While U.S. Attorney General Merrick Garland announced a DOJ investigation into the Minneapolis police department, the AG must also start a sweeping investigation into the dereliction of duty by state legislatures in their unconstitutional support, promotion and encouragement of homeowner association legislation.  

(See Legislative dereliction of duty: supporting HOAs). 

Legislation, which affects some 23% of all Americans living in an HOA, that permits contractual, authoritarian private governments  (HOAs or community associations) not accountable to the US Constitution.

The DOJ must also investigate the role and extent of the influence on state legislatures by the national, self-proclaimed expert in HOA law, the Community Associations Institute (CAI) and its affiliate, The Foundation for Community Association Research.  The DOJ must examine the extent of the teachings of the CAI School of HOA Governance has had in creating longtime conditioning and indoctrination of legislators, the media, and the public.  

“CAI School” is a term that I use to describe the collection of all CAI statements, publications and including seminars, programs, classes, etc. that constitute the CAI Manifesto.

State legislatures must be held accountable for any undue influence by pro-HOA special interests.  CAI must be held accountable for the content of its pro-HOA advocacy.

AZ Attorney General admits SB 1454 HOA to be invalid and without effect

Pursuant to a consent agreement with the State of Arizona,[1] the Attorney General’s office admitted that SB 1454 violated the AZ Constitution and sections of SB 1454 relating to certain HOA statutes to be invalid and without effect on September 13th.  SB 1454 violated Article 4, Part 2, Section 13 of the Arizona Constitution.  On July 19, 2013 plaintiffs George K. Staropoli and William M. Brown had filed suit against the State of Arizona, CV 2013-009991,[2] seeking a declaratory judgment that SB 1454 violated the Constitution.

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.” Machiavelli and America, Hadley Arkes, p. 145, The Prince (Yale University Press, 1999).

The invalidated Sections are:  2, 3, and 15 – 17, 19 – 21 of SB 1454 (Ariz. Sess. L. Ch. 254). These sections affected the following Arizona Revised Statutes:  9-461.15, 11-810, 22-512, 33-1250, 33-1260.01, 33-1261, 33-1806.01, 33-1812, and 41-2198.01.  We believed that Section 18, adding ARS 33-1261(E) to the Condominium Act, is about political signs and relates to public elections. We agreed it is covered in the title subject of “elections” and is a valid statute.

Particularly disturbing was the amendments that granted special powers to HOA managers to represent HOAs in small claims court and in OAH hearings, powers that state Certified Legal Document Preparers do not possess. The litigation rights of homeowners were put at a disadvantage because they could not also have an untrained and unlicensed third-party represent them.

Many may believe that SB 1454 had HOA amendments that would benefit homeowner rights and this lawsuit removed these benefits.  The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.[3]

The consent agreement will become binding pending acceptance and signing of the order by the Superior Court judge, expected before the 13th.

I would like to thank Executive Director Tim Hogan, Staff Attorney Joy Herr-Cardillo, and the Arizona Center for Law in the Public Interest for their outstanding support of the people.

 

References

Indiana AG given authority to pursue HOAs for criminal acts

My to my surprise I had discovered that a state Attorney General must have specific legislation granting the AG to act against wrongful acts by an HOA.  Homeowners contacting their AG, like myself and many others, have been told that such legislation is needed.  Fortunately one state, Indiana, stepped up to the plate and enacted a law granting the AG to so act (PL 49-2011, HE1058).

Here’s the simply and succinct wording of this groundbreaking law, the first that I am aware of.

 

(b) IC 32-25.5-3-8 applies to all homeowners associations.

Sec. 8.

(a) The attorney general may bring an action against a board or an individual member of a board of a homeowners association if the attorney general finds that:

(1) the association’s funds have been knowingly or intentionally misappropriated or diverted by a board member; or

(2) a board member has knowingly or intentionally used the board member’s position on the board to commit fraud or a criminal act against the association or the association’s members.

(b) A court in which an action is brought under this section may do the following:

(1) Issue an injunction.

(2) Order the board member to make restitution to the homeowners association or to a member.

(3) Order a board member to be removed from the board.

(4) Order a board member to reimburse the state for the reasonable costs of the attorney general’s investigation and prosecution of the violation.

Please note that this authority is restricted to criminal acts and does not permit the AG to get involved in the multitude of civil matters such as, breach of contract, rules enforcement, assessment collections or maintenance.  Basically, it’s about theft, embezzlement, misuse of funds, etc.  However, it is an important move in the right direction of the equal application of the laws and due process protections under the 14th Amendment.

This past August the Indiana AG filed suit against The Harbours Condominiums Association and against board members Kevin Zipperle, Mary Lou Trautwein-Lamkin and Sharon Chandler for allegedly breaching their fiduciary duty and committing fraud.