HOAs undermine principles of democratic America

The immediate reaction to the title of this editorial comment from the vast majority of readers, is as I suspect,

Unbelievable, wild statement; No way; I love my HOA; the volunteers work for the community; the board of directors has my interests at heart; I can vote for the directors and on other matters, And anyway, I really don’t care, I’m happy with the amenities, facilities, and protection of my property value.

This blindness toward compliance with the US Constitution and the laws of the land can be traced to the culture of the HOA-Land Nation as I presented in Part 1 of The HOA-Land Nation Within America. As for the false argument that because members can vote for a board of directors makes the HOA democratic, ignores the reality of Cuba, China, Russia, North Korea and other countries where people can also vote for their leaders.  Voting alone does not make a democracy.

Other aspects of the HOA model of government that illustrate departures from public government, the Constitution and laws of the land can be found in the HOA-Land Nation publication: lack of oversight protections and the absence of a separation of powers, especially there is no independent judicial function for fair hearings; an absence of meaningful  penalties against acts of the Board amounting to absolute immunity; and inadequate fair election procedures as found in public elections.

In all practicality, the HOA private government is based on a business model and not a municipality model, and whoever described a business as being democratic?  As such, following the business model, the HOA is a one-party government; the party of the incumbents who control the selection of candidates, who can vote, and the election procedures designed to keep the establishment in power.

Here’s what Gandhi had to say about one-party governments and democracy. With the independence of India from British control in 1947, Mahatma Gandhi reflected on the dominance of the Indian National Congress Party over the newly formed government.

“[Gandhi] realized that a one-party system could actually be a no-party system, for when the government and party are one, the party is a rubber stamp and leads only to a fictitious existence.

‘Without free criticism and potent opposition, democracy dies.

‘Without political criticism and opposition, a nation’s intellect, culture and public morality stagnate; big men are purged and small men become kowtowing pygmies. The leaders surround themselves with cowards, sycophants and groveling yes-men whose automatic approval is misread as a tribute to greatness.’”

(The Life of Mahatma Gandhi, Louis Fischer, The Eaton Press, collector’s edition (1988, initially 1950).

The common culture within the HOA-Land Nation treats any criticism, any opposition, any independent thought not supported or approved by the board of directors as subversive. The members are inculcated into adopting and supporting this attitude and treat such views as harmful to the peace and harmony of the community.  Committees of members — opposing political parties – are attacked and treated with hostility. Free political speech and dissent is not tolerated.  

With 23% plus Americans living in HOA-Land, the HOA culture has had its effect on national, state and local politics; ignoring the Constitution and laws of the land are easily acceptable and do not constitute a problem for HOA members. 

Take the HOA political free speech poll

I’m pleased to see that Deborah Goonan has followed up on my Jan. 29 post regarding Arizona’s SB 1412 bill that restores and protects fair elections and campaigning by members.   Glad to see that she also asked AZHOC, Dennis Legere,  to get involved. Good work Deborah!

BUT we need more active involvement from other groups within and without Arizona.  You are needed to create a bandwagon of support so your state will get the message!  And that also calls for taking the free speech poll today, on left panel, which will demonstrate to your legislature that there is a serious need for such a bill in your state.  Completely private, I don’t get name or email address.

sen_Gov

nation-coverRK

 

Authorities for protected HOA political speech — SB 1412 poll

In regard to Arizona’s SB 1412 seeking free political speech with regard to HOA governance issues, please see the following Commentaries containing relevant court opinions and California bill, SB 323, passed into law last year. Don’t forget about the important references — endnotes — found in these Commentaries.

Take the HOA public issues poll in confidence. Complete privacy. I don’t get name or email address, so take the poll today!

  1. Political free speech both without and within the HOA (2018).
  2. NJ Supreme Court upholds constitution against HOA free speech electioneering violations (2014).
  3. CA SB323 a model on fair elections for all states (2019).
  4. courts hold HOAs as political second governments with public issues (2009).
  5. Protecting HOA political free speech on matters of general community interest (2015). Applies anti-slapp laws protecting HOA free speech.

 

 

subtle HOA restrictions on fair elections

In Arizona I discovered a large, active-adult HOA that I first thought was quite liberal and emancipated but in reality turned out to be just a benevolent dictatorship. That’s about as good as it can get! Basically, a benevolent dictatorship gives the appearance of serving the members’ best interests by playing on their wishes, desires and, most of all, fears. But the essential structure of the governing documents and state laws create and support a legal dictatorship. Harsh actions and statements are avoided.

As an example, in regard to fair elections, I came across its application for board membership that outlines the duties, responsibilities and attitudes of directors. In short, the BOD through an election committee controls candidate campaigning and what the candidate may or may not say. In the public domain this would be considered outrageous and undemocratic.

Here are a few conditions:

The Campaign and Election Policies have been carefully developed to provide a fair and clean process for candidates and all members. It is expected that candidates . . . will act with the utmost integrity and respect toward all candidates. It is also expected everyone will focus on issues and refrain from negative criticism of any other candidate or group. [This is political correctness and an unconstitutional restraint on political free speech.]

IN THE SPIRIT OF FAIRNESS: [Say what?]

 ALLOWED [my emphasis]

  • Submitting to and awaiting approval by the Election Team before distributing campaign flyers. . . Unapproved campaign flyers will be confiscated and destroyed by the Election Team. [It’s an unconstitutional restraint on political free speech].
  • Placing approved campaign flyers ONLY on designated tables next to the election poster boards in approved locations
  • Attending any . . . community group gatherings . . during the group’s informal assembly time only. [Should be a decision by the groups chair or president].
  • Distribution of personal correspondence through the US Postal Service at candidate’s own cost is allowed after approval by the Election Team. [It’s an unconstitutional restraint on political free speech].

NOT ALLOWED  [All would not pass public fair elections procedures].

  • Using email listings, electronic or websites [of any HOA organization] Addressing a formal . . . Community Group; Participating in formal Q&A sessions and programs other than those sponsored by the Election Team.
  • Using Association facilities for campaign events for individual candidates.
  • Using advertising of any type (other than approved campaign flyer and/or approved personal correspondence).
  • Distributing campaign flyers in common areas except as noted.

There are several court cases upholding HOA political free speech. See Protecting HOA political free speech on matters of general community interest (2000 -2010); Court Decisions May Make it Harder for Condominium Associations to Restrict Free Speech Rights of Owners (2012).

Political free speech both without and within the HOA

I recently came across a post by a Massachusetts law firm , MEEB, that basically summarized my arguments and positions on unconstitutional HOA governments.  In particular, alleged waivers of constitutional rights and the prohibition against private contractual government  HOAs from restricting political public speech.  That applies to both in the public domain and within the HOA community domain.

In its 2012 post, “Court Decisions May Make it Harder to Restrict Free Speech Rights,” decisions in 3 court cases (VT and MA) are reviewed. In essence, these decisions challenge “an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities.”  The reason offered, as I’ve mentioned many times, “citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.

In contrast to Twin Rivers,  in Mazdabrook “the court noted [political speech] ‘lies at the core’ of our constitutional free speech protectionsPolitical signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development.”  And the court concluded “that the sign policy in question violates the free speech clause of the State Constitution.”

 In regard to the alleged waiver of fundamental rights (my emphasis),

The New Jersey court expressed serious concerns about whether and how condominium owners can  voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear.  Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

 Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

In the Preu (MA) decision, the court addressed state actions by the HOA,

The court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test.

 The constitutional test would require strict scrutiny, which requires a necessary and compelling reason to restrict fundamental rights. Lesser loss of rights, say under state laws, would be subject to a lessor test, but more than the broader “a government’s general interest” that can easily be extended beyond justifiable logic.

In addition to the above rulings, California’s SB 1265 that states the HOA is a quasi-government faces a test in the legislature tomorrow. Let’s hope it passes.  The sponsor, Senator Wieckowski,  also managed to have SB 407 passed last year that broader prohibits restrictions on free speech regarding meeting rooms, assemblies, use of common areas, etc.

“It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (New Civ. Code 4515(a).

Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership for campaigning or publicizing opposing views.