I am responding to Mr. Berding’s undated blog entry, First Thing We Do, Let’s Ban All the Bloggers! , a no-name identification of the author of the blog, namely yours-truly. Why is Mr. Berding afraid of mentioning my name? After all, I’m not an attorney. He chose to copy my Commentary rather than to provide a link to my blog, with all those other commentaries.
Ok, it does appear that Mr. Berding is quite perturbed about my statements and quotes from a D & O insurance article that uses the phrases “bad faith,” “criminal intent,” and “fraudulent acts.” He’s upset that I emphasized these words in my Commentary (WordPress Blog). Yet, Berding misleads the readers of his own blog by referring to my Commentary as, “suppose this is a blog.”
Yes, the ugly truth does hurt, Mr. Berding, doesn’t it? And I suppose posting on those blogs, like yours, those CAI blogs, and the Adams Kessler blogs does make them right and important, but forget about those advocate written blogs. Spoken as a true legal-academic aristocrat making Philosopher-King (educated elite setting forth what is good government to the rulers) pronouncements.
Mr. Berding then invokes the legalistic argument of allegations and no proof, as if this were the time and place for legal confrontation. His attitude reminds me of the slogan commonly found on court buildings and other judicial buildings, “Equal Justice Under the Law.” This slogan contains a hidden premise, or assumption, that the law is just and fair. Suppose it isn’t, as advocates maintain? Then the slogan is reduced to a meaningless and empty statement. And those with power derived from these unjust laws just love to argue, “It’s the law! It’s the law! We have done nothing wrong!” And that’s were ethical and moral questions of good faith – honesty and integrity, or an honest intent to act without taking an unfair advantage over another person – come into play.
Our public policy permits the law to inflict financial damages, and the possible loss of all one’s equity in his home, for violating the CC&Rs, yet gives only a “ slap on the wrist” to violations by the HOA board. It permits “after an opportunity to be heard” to satisfy the due process requirement for hearings on violations, there being no explicit statement, as found in the public arena: “by an independent tribunal with the right to present evidence, demand proof and to confront witnesses.” It is absent from the CC&R contractual agreement. And where state legislatures maintain a hands-off posture, providing no oversight accountability or effective enforcement against board violations in a “see no evil, hear no evil and speak no evil” banana republic posture. And justifies this pro-HOA support with, “Well, that’s what the homeowner agreed to. Now he’s just trying to get out of a contract.” What kind of society do HOAs create?
I’m sure he would be shocked, as were the editors at KPHO, the Phoenix CBS-TV affiliate, when they conducted a poll on the PTSD HOA Syndrome (click on image), and found out that 68% of the respondents agreed it existed. Or that an overwhelming 91% respondents in a Truth in HOAs Disclosure Poll said NO to signing an agreement to accept, beforehand, the conditions as set forth in the poll — misrepresentation, fraud, no meeting of the minds, etc. No, after all, his philosophy accepts the belief that “the king can do no wrong.”
As to his CAI remark, all he had to do is to attend these seminars and discover for himself the lack of homeowner protection material presented at these seminars. For example, important info for homeowners can be found in my latest Commentary (HOA boards cannot escape wrongful acts by their managers), information regarding the relationship between the HOA and the management firm. It is is an agency relationship that carries with it immense protections for the homeowner against both the management firm and the HOA board. It’s not on the agenda.
As to misleading and out-of-context statements about the D & O article, Mr. Berding misses my point, which is that the board can be sued and here are the grounds for suing. Also not found in an educational CAI, town sponsored seminar. He discredits my work as “emotional,” “lacking objectivity,” and that I “don’t contribute much that is useful to their chosen subject.” So sayeth the Philosopher-King, or is it the “weavers” from The Emperor’s New Clothes?
Come down from the clouds Mr. Berding, and see what is happening around you. I challenge you to answer the following 4 questions that were posed in March 2006 to Mr. Durso, then Editor of CAI’s Common Ground,
I ask the legislators, the public interest organizations and policy makers to consider the following questions:
1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?
2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?
3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the “nailing to the wall”, the medieval method of notice, measure up to the requisite level of notice and informed consent to permit the loss of Constitutional protections?
4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?
I await your reply, or a reply from any of the legal-academic aristocrats.