Do you stand behind the US Constitution or your HOA ‘constitution’?

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.

Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.  It has passed put of committee and Caucus.

This important bill has been sitting for an extended 2 week time awaiting the House leadership to schedule it for a full House vote of all the members. NOT A GOOD SIGN!  My years of experience lead me to believe it does not have the support of the leadershp that has the right, under House Rules,  to withhold bills from further votes.

HB 2158 (2022). You can read the bill at the legislature’s website. Read the important amendments below. This is your chance to stand up for constitutional protections against the CAI lobbyists, many whose members have been or are SCG directors – conflict of interest!

“L. Notwithstanding any provision in the community documents, an associociation [sic] may not prohibit or unreasonably restrict a member’s ability to peacefully assemble and use private or common areas of the planned community . . . . An individual member or group of members may organize to discuss or address planned community business, including board elections or recalls, potential or actual ballot issues or revisions to the community documents . . . . The association shall not restrict posting notices of these informal member meetings on physical or electronic bulletin boards used by the association for posting notices for the association’s or board of director’s official meetings.”

This bill has support from the Nevada Supreme Court opinion in Kosor (NV supreme court upholds HOAs as public forums (re: Kosor 2021)) that contained several California opinions serving as legal precedent.

 “[A] unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community . . . legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel.”

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.”

“The HOA here is no less of ‘a quasi-government entity’

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The following is an excerpt from a lengthy email sent to me by a long time AZ homeowner rights advocate, Dennis Legere. It and his email are made public with Dennis’ permisssion.  It  reveals the obstacles an hostiity he faces trying the get HOA reform legislation to restore lost rights and freedoms. It contains his comments on the heavy opposition  from CAI and AACM (AZ managers association, CAI trained).

“The ridiculous nature and hidden motivation of the HOA trade groups [CAI and AACM] is what makes any HOA meaningful legislation so difficult to get introduced or protected from demands from the trade groups for provisions that benefit them only.”

Take back controll of your HOA!  Write your Representative in support of this bill. Also write the sponsor, Jack Kavanagh (jkavanagh@azleg.gov) and the House leaders in support of this bill urging that it be submitted for a hearing by all the House members. Do it today!

House leaders:

Rbowers@azleg.gov – Speaker (R)

tgrantham@azleg.gov – Speaker Pro Temp (R)

btoma@azleg.gov – Majority Leader (R)

lbiasiucci@azleg.gov – Majority Whip (R)

rbolding@azleg.gov – Minority Leader (D)

ddegrazia@azleg.gov – Minority Whip (D)

jlongdon@azleg.gov – Asst Minortiy Whip (D)

HOAs against protected member speech on social media

In contrast to the authoritative evidence supporting free speech for HOA members criticizing their BODs, the Tinnelly Law firm blog states up front in big letters, “HOA LAWYER BLOG.”  As for the content, the following quote sums up the view of the Tinnellys.

“The lack of regulation on social media communications can cause neighborhood tensions and smear the reputation of a community, causing a negative effect on property values.  This has led many homeowners associations to develop protocols and guidelines with regard to social media. “

(Some research shows Tinnelly is solid CAI with the owners, Richard and Stephen Tinnelly as members, as well as Director Acosta and article attribution to lawyer Kim.)

Read the full 4-page paper at social media free speech

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 8^th 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!

Will AZ Supreme Court address broad HOA issues of constitutionality?

As we approach an October 5th decision to decide to hear the Tarter v. Bendt defamation case[i] that raises free speech and limited- purpose public figure issues, I am hoping that the Court will address the real-world widespread misinformation regarding conditions and the legal status of homeowner associations statutes. This investigation by the Court is essential for a just and fair decision in the defamation lawsuit by an HOA president and attorney. Questions of failing to act in good faith and an abuse of the law by the plaintiff attorney with respect to filing a strategic lawsuit against public participation (SLAPP) was raised in my amicus brief.

This is not an ordinary defamation lawsuit but one involving the actions and conduct by the plaintiff in his capacity as the HOA president  and in the context of matters of HOA governance. In the recent Nevada Supreme Court opinion in Kosor,[ii] the Court held that “HOAs as public forums and the president as a limited-purpose public figure” and further held that an HOA “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”

The decision by the Arizona Court will have widespread repercussions and consequences not only for Arizona, but for HOAs  nationwide affecting  statutes in every state. The legitimacy of a democratic country rests on just and fair laws for the people, as Professor Randy Barnett wrote,

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]

Since the context of the lawsuit relates to the legal status  and constitutionality of the HOA model of government, and to the statutes and CC&Rs “constitution” creating private contractual governments, did Bendt receive justice with a $500,000 award for the HOA president’s “pain and suffering? As applied to HOA statutes and Acts, will this Court heed US Supreme Court Justice Sotomayor’s dissent on the failure to uphold the Constitution?[iv]

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny . . . . Because the Court’s failure to act rewards tactics designed to avoid judicial review . . . . 

“To circumvent it [the Constitution], the [Texas] Legislature took the extraordinary step of enlisting private citizens to do what the State could not . . . .  It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry . . . .”

This case must be remanded to the trial court for consideration of the impact of HOA bias on the decision against Bendt.

Notes

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[i] See HOA limited-purpose public directors and officers; The continuing saga of Bendt and public speech in HOAs; Pro Se Bendt amicus brief accepted by AZ Supreme Court.

[ii]  Kosor v. Olympia Companies, NV No, 75669 (Dec. 31, 2020).

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

[iv]  Whole Woman’s v. Austion Reeve Jackson, 594 U. S. ____ (2021) Sotomayor R, J., dissenting, Supreme Court of the United States, No. 21A24 [September 1, 2021]. (Abortion case).

In Kosor the NV appellate court upholds HOAs as public forums

In January of this year I posted the Nevada Supreme Court’s opinion on HOAs as public forums and the president as a limited-purpose public figure (NV supreme court upholds HOAs as public forums).  Last month on an appeal (Olympia v. Kosor, No. A-17-765257-C (Nev. Ct. App. 2021) from the remand, to  let the trial court hear the case on above issues, the appellate Court upheld the supreme courts findings and opinion.

The tremendous constitutional question of free political speech on issues of HOA governance was upheld. Finally! In doing so, the Court also held, citing several cases that [note 1],

• [the HOA]  “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”

• the Nevada Supreme Court has found the [the HOA] Board to be in the nature of a quasi-government entity largely paralleling the powers, duties, and responsibilities of a municipal entity and its meetings similar in function to a governmental body.

• homeowners’ associations open meetings are public forums as such associations play ’a critical role in making and enforcing rules affecting the daily lives of [community] residents.’”  

• “the HOA meetings at which Kosor made certain of the statements at issue were ‘public forums’ … because the meetings were ‘open to all interested parties, and … a place where members could communicate their ideas. Further, the…meetings served a function similar to that of a governmental body.”

• In deciding this Motion, this Court also concludes Plaintiffs at least constitute limited-purpose public figures.

• The test for determining whether someone is a limited public figure includes examining whether a person’s role in a matter of public concern is voluntary and prominent.” [as is the case with HOA boards and presidents]

• the issues Defendant raised involve efforts to encourage homeowner participation in and oversight of the governance of Southern Highlands, “an inherently political question of vital importance to each individual and to the community as a whole.”

. . . .

Your HOA cannot stop your free speech if you argue Kosor! Just be careful about making harsh, accusatory statements that violate elements of defamation that will  defeat your free speech.

NOTE 1. Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205, 214 (2000); Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209, 214 (1983); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 91 (2002).