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!

HOAs are another form of local government

Listening to the events concerning the shooting in Brooklyn Center, MN I was surprised to learn that its form of government is based on the council-manager system.  We are more familiar with the mayor – council or mayor – manager forms of local government where the mayor is elected and plays a major role in governing the city.[1]

However, in the council-manager form the mayor is a figure head with the powers to rule the city are divided between the elected city council and a city manager  appointed by the council.  Sound familiar?  Many HOA Bylaws follow the council-manager form of local government, except that the Bylaws do provide for corporation laws governing the duties of officers.  This is true of the many large HOAs and the retirement/resort subdivisions.

The division of labor and authority follows the public form in that the council holds ultimate responsibility for the conduct of the government but is restricted to policy issues, while the appointed manager actually runs the HOA. A good example can be found in an Arizona active-adult HOA of some 17,000 people.

“The affairs of the Association shall be managed by a Board of Directors which shall serve as the corporate policy-making body of the Association. . . .  The Board is not responsible for nor authorized to perform day-to-day operations of the Association. The day-to-day operations of the Association shall be carried out by CAM or agents retained by the Association under the supervision of the Board.

“Subject to the Board’s responsibilities concerning operational policies, it shall be the policy of the Association . . . that the Board refrain from unreasonably interfering with the performance of delegated functions by CAM.”

The major difference between local public government Brooklyn Center, MN and the Arizona HOA lies in the private contractual nature of the HOA that absolves it from application of the US Constitution as well as the state constitution. HOA members are, as compared to non-HOA members, therefore second-class citizens lacking constitutional protections within their own state.[2]

The $64,000 question is: So why is there so much opposition to requiring the HOA to be subject to the Constitution like all other forms of local government?  BEFORE you respond, think very carefully with respect to the implication and consequences of your response.

References


[1] See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007). They are: Strong Mayor, Council-Manager, Town Meeting (direct or representative democracy), and Commission. See also,  Home rule doctrine vs. HOA governments; CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[2] See George K. Staropoli, HOA-Land Nation Within America (2019).

Failing to achieve substantive HOA reforms

Is there a way out?  Definitely yes!

It is not by going to state legislatures to be repeatedly rejected, or given token reforms but with no substantive redress of grievances. It is not by repeatedly expecting the courts to do homeowner justice in spite of the strong stare decisis precedent of pro-HOA laws and public policy favoring HOA-Land. It is not by expecting law colleges to provide a balanced educational program in law for students that includes HOA constitutionality.

And it is not by hoping that the media — granted special 1st Amendment protections to inform and educate the citizens on political matters — will measure up and so present the whole HOA truth that has been so long hidden from the public.

As a result of my 21 years of activism and advocacy for HOA constitutionality, and my education and detailed research, I have come to understand the greater social and political forces at work. These forces that have led to the current culture and environment surrounding the HOA legal scheme and structure. They are detailed in my “The HOA-Land Culture.”

Read more at Cult behavior within HOA-Land and Plan to Restructure HOA model.

The “end of denial” of unconstitutional HOAs

Ibram X. Kendi’s article, “The End of Denial,” appears in the September 2020 Atlantic Monthly. While Kendi argues that the upsurge in the denial of racism is a major step to ending racism in America, I can expand upon this mindset shift, this reorientation,  to ending the denial of the unconstitutionality of the HOA legal scheme and model of local government. This mindset shift will produce the broad, substantial reforms to the current prejudicial view favoring authoritarian,  private government HOAs.

Applying Kendi’s view to HOA constitutionality, Kendi urged “The American people [to] give policy makers an ultimatum: Use your power to radically reduce inequity and injustice, or be voted out”; and that “the American people [must] demand equitable results, not speeches that make them feel good about themselves and their country.”[1]

I have proposed a plan to accomplish this HOA mindset shift,

“Restructuring the HOA-Land Nation  requires a cultural change in in the way of life of members; and an appropriate change in attitude by  state legislatures, the people and the home buying public.”[2]

and describe the underlying HOA social and political culture,[3]

“This HOA-Land Nation Within America white paper challenges, confronts, and exposes the self-interest bias by pro-HOA stalwarts, and contains authoritative documentation and evidence as well as statements used in this indoctrination process.”

The question that I posed to the policymakers, the constitutional pundits, and Arizona Legislature as far back as 2006 remains long unanswered:

“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”

Following Kendi’s lead, it is well beyond time for the denial of unconstitutional HOAs to end. It remains in the hands of Americans to demand that the state and local governments, the policymakers, and the constitutional pundits restore full citizenship to Americans living in authoritarian, private governments functioning outside the Constitution.

References


[1] “Ibram X. Kendi on ‘The End of Denial’”, Press Room, The Atlantic Monthly, August 5, 2020.

[2] George K. Staropoli,  A Plan Toward Restoring the HOA Model of Governance, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b089yvpcwp.

[3] George K. Staropoli, The HOA-Land Nation Within America, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b07r6xc1yt.                               

Restoring the lost Constitution to HOA-Land

Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. Overwhelmingly their members swear by the HOA as the next best thing to Mom’s apple pie. It is hard to accept this undying loyalty to the HOA and its board of directors in view of the fact that their acceptance of HOAs is the result of an intentional indoctrination by national lobbying, business trade group that, in my mind, does not know how to spell “constitution.. Obviously then, those CAI surveys are suspect.

HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States. “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

To provide the ignored but important and substantial aspects of the HOA legal scheme I have designated three books by StarMan Group under the collection, “Restoring the Lost Constitution to HOA-Land.” They are 1) HOA Common Sense: rejecting private government, a summary of 6 constitutional defects, 2) The HOA-Land Nation Within America, presenting the scope of outlaw private governments that deny constitutional protections to HOA members, and 3) The Plan to Restructure the Model of HOA Governance that advances a plan to restore the Constitution to HOAs while keeping the desired benefits of the “real estate package.” (All the above can be found on Amazon.com).

For a historical perspective of HOA-Land, see:

  • The Homes Associations Handbook (ULI, 1964). Not publicly available but I have a copy of the 434 page document).
  • Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994), Evan McKenzie.
  • Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (2000), Donald R. Stable. (ULI and CAI production).

(All the above, except for the Handbook,  can be found on Amazon.com).