The people at CAI working against member interests

CAI Advocacy Blog for 11/23/2021, email (Click on this link to see state members).

Thank you to these incredible volunteer leaders and CAI members. Wishing you, your family, and friends a Happy Thanksgiving. We’re so thankful for you!

Government and Public Affairs Committee
Mr. T. Peter Kristian, CMCA, LSM, PCAM

Ms. Sally L. Balson
Mrs. Marilyn E. Brainard
Mrs. Wendy Bucknum, CMCA, AMS, PCAM
Ms. M. Katherine Bushey, Esq.
Mr. Joseph Carleton, Esq., CCAL fellow
Mr. Joseph Crawford, CMCA, AMS, PCAM
Ms. Sandra K. Denton, CMCA, LSM, PCAM
Ms. Jennifer Eilert, CIRMS
Mr. Michael Johnson, CMCA, AMS, PCAM
Mr. John Krueger
Ms. Lisa A. Magill, Esq., CCAL fellow
Mr. Nathan R. McGuire, Esq.
Ms. Janet L. Newcomb
Mr. Matt D. Ober, Esq.
Mr. Scott J. Sandler, Esq., CCAL fellow
Mr. Todd A. Sinkins, Esq., CCAL fellow
Ms. Wendy W. Taylor, CMCA, AMS, LSM, PCAM
Mr. Michael Laurence Traidman
Mr. Craig F. Wilson Jr., CMCA, AMS, PCAM
Mr. Ronald L. Perl, Esq. CCAL fellow
Mr. J. David Ramsey, Esq., CCAL fellow
 

Federal Legislative Action Committee
Mr. Ronald L. Perl, Esq., CCAL fellow
Mrs. Pamela D. Bailey, CMCA, AMS, PCAM
Mr. Jeffrey A. Beaumont, Esq., CCAL fellow
Mrs. Marilyn E Brainard
Mrs. Wendy Bucknum, CMCA, AMS, PCAM
Mr. Robert M. Diamond, Esq., CCAL fellow
Mr. Andrew S. Fortin, Esq.
Mr. T. Peter Kristian, CMCA, LSM, PCAM
Ms. Lisa A. Magill, Esq., CCAL fellow
Mr. Stephen M. Marcus, Esq., CCAL fellow
Mr. George E. Nowack Jr., Esq., CCAL fellow
Mr. J. David Ramsey, Esq., CCAL fellow
Mr. Stefan Richter, Esq., CCAL fellow
Mr. Clifford J. Treese, CIRMS

Champlain Tower South Task Force Leadership and Committee Contributors
Ms. Lisa Magill, Esq., CCAL fellow
Mr. Bob Browning, PCAM, RS
Mr. Mitchell Frumkin, RS
Mr. Robert Diamond, Esq., CCAL fellow
Mr. Stephen Marcus, Esq., CCAL fellow
Ms. Jennifer Eilert, CIRMS
Ms. AJ Scott, CIRMS
Mr. Phil Masi, CIRMS
Mr. Cliff Treese, CIRMS

(The following underlined are NOT links. See above link.)

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The post Happy Thanksgiving: Feeling Grateful for CAI Volunteer Advocacy Leaders appeared first on CAI Advocacy Blog.

Can HOA members expect justice in Arizona courts?

“HOA members in Arizona should not expect justice from the courts”

If you are a member of an Arizona HOA/condo, or soon plan to be one, you should pay heed to the above quote made in response to the Arizona Supreme Court’s denial to hear the Bendt appeal petition for review.[i]  In my Commentary, trying to understand the rationale for the denial,

“The homeowner, Bendt, is punished for speaking out, in admittedly harsh terms, [relating to issues of HOA governance]. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants; allowing them to  raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct.[ii]

What message is being sent by this disturbing decision? To the public? To the homeowners in HOAs seeking the equal protection of the laws under the Constitution? To the national lobbying trade group, CAI, who can breathe easy with respect to any challenges to the constitutionality of the HOA legal scheme that  contains denials of fundamental rights and privileges?

Professor Randy Barnett wrote, speaking of justice and judicial legitimacy,

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[iii]  

And we must not ignore the effect of precedent on court opinions. Hansford and Spriggs found [that] the doctrine of stare decisis, itself, falls victim to the preferences of the judges. The closer the precedent was to the judges views, the more the precedent would be followed, and vice versa. Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges (p. 75).[iv]  Bad HOA laws abound leading to favorable anti-homeowner decisions.

And still we see “Equal justice under the law” emblazoned on the façade of the US Supreme Court building. It contains a major defect, a misleading fallacy,  and a presumption of supreme court infallibility [without error].  Bad laws — unjust laws — will not produce justice for all!  And that is just what we face in the HOA-Land Nation.

I have argued (2009) for a judicial system that adhere to the following:

Before we can decide, we must examine some of the myths and realities of the American judicial system.  First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law.  Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past.  In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure;   “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above.  This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.[v]

. . . .

So, in particular, went is wrong with the AZ  supreme court denial in Bendt?  A lot!

An amicus brief is submitted, and subject to approval by the Court and the parties, to advise the Justices in better understanding the conditions and factors relevant its opinion that it may not be aware of. The following is a summary of arguments presented in my amicus brief[vi] seeking the Court to review the petition in the name of justice for the homeowner, Bendt, and for all other citizens living n Arizona HOAs.

“The Hannaman 2002 study (NJ) was quite frank and revealing describing problems and complaint still in existence some 19 years later in spite of efforts by the self-proclaimed HOA experts and educators, national CAI. “

“[Referring to Nevada Supreme Court in Kosor v. Olympia Companies, 478 P.3d 390 (2020)]. Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.

“As our [California] Supreme Court has recognized, owners of planned development units ” ‘comprise a little democratic subsociety . . . .’ ” (citations omitted).” (Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205 (Ct. App. 2000) at “A. Public Forum”).

“Among its findings [South Carolina HOA study committee] were . . . While the Community Association Institute (CAI) and other private entities offer educational resources to homeowners and managers, state government cannot place the sole responsibility of educating homeowners and board members on a private entity.

“Although not presented by the Appellant where three plaintiffs who] are lawyers, and based on claims of false and inexcusable character assassination against Tarter . . . this Court has reasonable suspicion to remand the case for a determination the validity of an anti-slapp motion.

“This Court, or any court, cannot allow a group of individuals or organizations to create a devise in order to escape constitutional protections and enter into a contract, constitutionally valid in all other aspects, to form private local governments whose members remain citizens of this country as well as of their respective states. It, as it stands in regard to HOAs, makes a mockery of the Constitution and our principles of a democratic society.

“The free speech issues of limited-purpose public figure and of HOAs and social media as public forums with respect to political HOA governance issues have been raised and need to be addressed.

“As with Brown [v. Bd of Educ.], America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. In 1992 CAI dropped its 501(c)3 educational status for 501(c)6 trade organization so it could lobby state legislators.”

I cannot understand the Supreme Court’s denial of Bendt’s petition and the opportunity to rule or to further investigate these issues, by orders or by request to the Legislature — as it has so ordered in the past —  and thereby fulfilling its obligation to defend the Arizona and US Constitutions.  Instead, it seems that the Justices have allowed their opinions to be guided by the prevailing public policy favoring private government HOAs that are independent of the two Constitutions.[vii]

References


[i] See AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine.

[ii] Id.

[iii] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).

[iv] Hansford and Spriggs, The Politics of Precedent on the U.S. Supreme Court, Princeton Univ. Press (2006).

[v] See in general,  HOAs, justice, and judicial myth and precedent.

[vi] Staropoli Amicus brief Tarter  v. Bendt

[vii] See in general, The HOA-Land Nation Within America and Establishing the New America of Independent HOA Principalities.

AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine

The Arizona Supreme Court has denied hearing the Tarter v. Bendt (CV21-0049-PR), a defamation lawsuit brought by an HOA president and attorney.  In general, the Court does not provide any reasons or justifications for its decision and did not provide one. The attorney for Bendt, Lori Voepel, while addressing the legalities of the decisions, raised the  question that Tarter, the HOA president, was a limited-purpose public figure entitling Bendt to additional free speech protections. It is my understanding that Sonia Bendt will be pursing a US Supreme Court appeal.

In my amicus brief I informed the Justices about the real-world functioning and operations of HOAs, and about the biased public policy resulting from the dominance of the national lobbying organization, CAI, and its agenda. I included aspects of public policy  set forth  by the Arizona pro-HOA legislature, judges in their decisions and opinions, and the silence of the media to inform the public as to this reality.  I had hoped that the case would be remanded for consideration of the role of the HOA president, since the complaint concerned acts and conduct by Tarter in his capacity as HOA president.

In my amicus brief (an advisory filing as a “friend of the court”) I painted a broad picture of HOAs as public forums with protected free speech concerning questions of HOA governance. A favorable decision would have prohibited HOA boards of directors from restricting member criticisms and allowing “opposition parties” equal access to the same means and vehicles that the BOD uses; namely, the HOA magazine, email distribution, use of facilities for meetings and “townhalls,” to name a few.

I am very disappointed in the Arizona Justices.  Permitting an outlandish financial damages and adding  punitive damages of $1,000,000 and $500,000 in compensatory damages is outrageous and not warranted by the evidence or by the HOA legal scheme. An opportunity to protect citizens living in HOAs from second class citizenship was ignored! Have they forgotten the 8th Amendment prohibitions: “nor excessive fines imposed, nor cruel and unusual punishments inflicted”? OH, HOAS are not public bodies!

The homeowner, Bendt, is punished for speaking out in admittedly harsh terms. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants. Allowing them to  raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct.  “No negatives about HOAs shall be allowed” seems to be the Court’s policy.

“Something is rotten in the state of Denmark.” No, something is rotten in the state of Arizona!

Questionable CAI/FCAR 2020 facts

My analysis of the data presented in the 2020-2021 Statistical Review and CAI Factbook for 2020 by the CAI affiliate, Foundation for Community Association Research, brings me to suspect the data.  I painstakingly extracted the raw data as presented and subjected it to my own analysis using an EXCEL spreadsheet.  Almost immediately a very disturbing result appeared that should have been obvious to a statistician as highly unlikely.  Of the 27 top states by number of  HOA organizations, my analysis revealed a fixed 3.3% of Volunteers to HOA residents for the state. Restated, each state showed 3.3% of all HOA residents as CAI volunteers.research

From a point of view of statistics, events and activities generally follow the normal probability curve, more or less, but when there is no variation then the conclusion is that some other factors are at play that produced the result.  The normal distribution is the most important probability distribution in statistics because many continuous data in nature and psychology displays this bell-shaped curve when compiled and graphed.  For example, if we randomly sampled 100 individuals we would expect to see a normal distribution frequency curve for many continuous variables, such as IQ, height, weight and blood pressure.

Consequently, this result should have been caught if it were some error, or if not an error then an explanation as to what caused this highly unusual result.  There was no explanation. Therefore the validity and integrity of the Statistical Review is suspect. The data used to generate the results cannot be accepted as a factual free choice representation of the underlying reality.  To repeat, the “error” is too obvious not to  have stood out and been corrected. As such, the entire factsheet is suspect, and probably earlier factsheets as well.

Looking for some rational explanation, I then looked into the possibility that the Top 27 states were somehow different from all the states so I examined a random 5 states, one from each corner and one from central US.  They, too, showed this suspect 3.3% ratio.

My research also revealed  the percent of HOA residents to the total US population as 21.1% and 22.4% (a variation ascribed to intermediate rounding of numbers and not significant). CAI has touted the number as 25% – 27%,  also in 2019, but in 2016 the number was in line with the 22% figure.  I cannot explain how this CAI number was obtained.

Hopefully, CAI and FCAR have an explanation.

For the mathematically inclined, the EXCEL spreadsheet (PDF) can be viewed. http://pvtgov.org/pvtgov/downloads/2020 data analysis.pdf

In case you were wondering about my background in statistics, I have taken courses in statistical analysis in psychological research, product marketing  (MS Management), participated in a queuing theory analysis of computer messaging throughput for international wall street firm, set up the methodology for the calculation of business sales for business brokerage industry, and analyzed the TV show, Deal or No Deal, probabilities of winning the million dollar prize (see starman.com website).

“Private Metropolis” revisited

It is my strong belief that  the HOA legal model of local government played a part  in the demise of democracy in America[i] has been greatly assisted by the recent publication Private Metropolis.[ii]  In my prior post on Private Metropolis,[iii] I was very pleased by the opening Introductory paragraph,

The opening introductory segment encompasses a wide description of special  governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 27% of the population — according to CAI — as residents), that “became, in effect, shadow governments.” 

Unfortunately, these highly descriptive political concepts  used in this very broad study of local government failed to appropriately address the form of local government known as HOAs.  Scant attention is given to these associations by the authors. In the 312 pages “homeowner association” is mentioned just once and “CID” twice. But “shadow government” and “quasi-government” and “special districts” are tossed around quite frequently. Readers, having read the very enticing title, will be greatly disappointed by its failure to deal with the most direct affront to the eclipse of local democratic government: the HOA legal model of governance that has been supported by all state legislatures across this country.

HOAs, my generic term for community and homeowners associations, satisfy the fundamental definition of a political government.  Black’s Law Dictionary (7th Ed.) definition separates the men from the boys: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.”  And that is the unique feature of political government that  distinguishes an HOA from  a business, a non-profit charity, a club, a union, etc. I believe that the decision to form HOA governance outside the domain of public government was intentional to avoid constitutional restrictions.[iv]

They are a de facto yet unrecognized form of local government — other forms being mayor-council, council-manager — born and created as private entities, and as such,  have escaped, for the most part, under the common defense prohibiting  any ”law impairing the obligation of contracts.” Although the other forms of public local government are subject and held to the Constitution and the laws of the land. HOAs meet every criteria set forth by the authors as indicated above and epitomize the eclipse of local democratic government. 

The authors appear to admit the failure of the  ivory tower “philosopher kings” (my terms) to actively participate in preventing the fall of local democracy: “Instead, even scholars who study local governments [only recently realized] the degree to which quasi-public institutions are insulated from the democratic process.”  That applies strongly to authoritarian HOA governments. 

Notes


[i] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).

[ii] Private Metropolis: the Eclipse of Local Democratic Government,  Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).

[iii]  Private Metropolis: explaining the demise of local public government.

[iv] CC&Rs are a devise for de facto HOA governments to escape constitutional government.