Calif. holds HOA elections as protected free speech public elections

Speaking of HOA members and public voting rights, “Why Are HOA Members Allowed A Public Vote?”[1], let’s look at the reverse side and ask, Why aren’t HOA elections equivalent to public elections?  This is another example of how successful constitutional challenges can lead to and bring about broad HOA reform legislation.

Many of us are aware of the treatment of dissenting and opposing voices with respect to BOD actions and elections. There are the threats by rogue BODs of harm, and of  slanderous and libelous statements aimed to discredit and injure the dissenter’s reputation. And then, in true attack the attackers,  there are the lawsuits by the BOD claiming that the dissenter’s speech was harmful and injured the reputation of the HOA and/or BOD members.

Anti-SLAPP

These lawsuits are referred to as Strategic Lawsuits Against Public Participation – SLAPP —  whose purpose is to silence the dissenting homeowner(s) by arguing that the HOA/BOD was defamed.[2]  In the name of justice, or the appearance of justice, many states have adopted anti-SLAPP statutes to protect the dissenters; in our case here, the homeowners. The common criteria to file an anti-slapp suit includes (my emphasis):

A moving party may file a special motion to dismiss [the HOA suit] under [the state’s] antiSLAPP statutes “if an [HOA] action is filed in retaliation to the exercise of free speech [homeowner dissent].” In considering a special motion to dismiss, a district court must undertake a two-prong analysis. First, the court must determine whether the moving party [homeowner] has, by a preponderance of the evidence, established that the action [anti-slapp motion] is based upon a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern.

Furthermore, 1)  the statement must be made without knowledge of falsehood or truth with respect to a public concern, 2) the statement must be made in a place open to the public or in a public forum, and 3) “aimed at procuring any governmental or electoral action, result or outcome.” WOW! No chance in hell to bring an anti-Slapp suit against an HOA.

HOA elections are public

However, as expected, the anti-slapp statutes vary from state to state with Arizona adopting the very strict government election requirement while California has held, over several court cases, that (my emphasis):

California courts have repeatedly held in the context of anti-SLAPP litigation that board meetings of a homeowners association “serve[] a function similar to that of a governmental body. As [the California] Supreme Court has recognized, owners of planned development units “‘comprise a little democratic subsociety.”‘ … A homeowners’ association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.”[3]

The use of mail or internet – social media or websites open to the public —  have been held by the California courts to be “ a public forum.”   Nextdoor was held to be a public forum in spite of the fact it functions as a closed group, but its intent is clearly to be open to anyone.[4]

This is another important tool for homeowners and advocates to use in CA, and to lobby for the same return to justice anti-slapp laws in other states.

Notes

[1] George K. Staropoli, “Why are HOA members allowed a public vote?” HOA Constitutional Government (July 20, 2019).

[2] See in general, Colorado’s anti-Slapp statute, Colorado becomes 31st State.

[3] Quoted Appellant’s Opening Brief,  Kosor v. Olympia Companies, LLC, (Nev. SC NO.75669, Feb. 8, 2019). At this writing Kosor has not yet been accepted to be heard by the Nevada Supreme Court.

[4] Id, Part C, vii, printed page 33.  See Kronemyer v. Internet Movie Data Base, Inc., 59 Cal. Rptr. 3d 48 (2007).

HOA political dynamics: totalitarian democracy

HOA political dynamics: authoritarianism & totalitarian democracy

First, allow me to clarify some important concepts and definitions that I have employed to help in understanding my positions and views.

  1. The term “HOA” is commonly used in 2 different aspects. While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
  2. “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  3. “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  4. “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  5. “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  6. “HOA-Land” is my descriptive term for “the collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.”
  7. “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

While the CC&Rs and declarations contain abundant boiler plate, each is a separate legal agreement and as such  the HOA can be viewed as a village.  The conglomeration of master planned communities or HOAs developed by the same developer can be seen as a clan.  All stemming from the HOA “bible,” the 1964 Homes Association Handbook.[2]

In an earlier editorial on civic responsibility,[3] I questioned the allegiance, the loyalty, and the obligations of HOA members.  Was it to the US Constitution or to the HOA “constitution,” the governing documents?  I answered that it appeared to be the HOA first and foremost – secessionist — creating division within the country.

This was followed up by the editorials[4] where I examined the attitudes, beliefs, and values of the HOA members themselves.  I focused on the aspect of long-term indoctrination by the HOA School of Public Enlightenment and Propaganda, my categorization. The question yet to be addressed was: What role did the members play themselves in terms of a predisposition to accept authoritarian, private governance?

By serendipity, or by destiny, I just received an email discussing authoritarianism and totalitarian democracy.[5] It argued that Americans were accepting authoritarian control, which seemed  to be a cause for the behavior of cult-like, dogmatic member acceptance of the HOA board’s (BOD) actions and attitudes.  It seems that the more predisposed to authoritarian control the more the member acted as a diehard, dogmatic, true-believer in the BOD.

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.

“These “authoritarian followers,” as social science labels them, are also highly ethnocentric, thus frequently racist, nationalistic, deeply partisan, and threatened by “the other.” . . . Other testing shows these people are also highly defensive.”

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.[6] The authoritarian nature of HOA-Land is masked by a thorough indoctrination[7] that the real estate subdivision is a democratic community (although the HOA is not a municipal entity but a private nonprofit association)  because the members are allowed to vote, as meaningless as it is.

But the HOA is truly a totalitarian democracy.  To paraphrase the founder of fascism, Benito Mussolini, “All within the HOA, nothing outside the HOA, nothing against the HOA.”   The marketing and promotion of the HOA model of governance has been conducted in a very smooth manner: no negatives, “carefree living,” playing to the emotions and desires of the members, misleading statements to induce buying, and empty promises of “maintaining property values, ”etc.

Here’s are some of J. L. Talmon’s views of totalitarian democracy as found on Wikipedia (my emphasis):

“A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule. An argument can be made that in some circumstances it is actually the political, economic, and military élite who interpret the general will to suit their own interests.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes

“It is [the member’s] duty and responsibility to aid his compatriots in realizing [this right of control]. Moreover, any public or private activities that do not forward this goal have no useful purpose. Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.” 

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that!  But these views of HOA-Land are a valuable enlightenment because it takes HOA-Land out of the hands of the propagandists, out of the shadows, out of the darkness of Plato’s cave.[8]  It reveals reality.

 

References

[1]In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors,”  CAI manifesto: CAI’s plan for HOA-Land in America, 2016.

[2] See my 2006,  Analysis of The Homes Association Handbook.

[3] Civic responsibility vs. HOA member responsibility.

[4] HOA social dynamics.

[5] Verdict” email from Justia.

[6] “Authoritarian” can be defined as “a form of government characterized by strong central power and limited political freedoms. Individual freedoms are subordinate to the state and there is no constitutional accountability and rule of law under an authoritarian regime.” Wikipedia.

[7] Supra n. 2.

[8]In the Allegory of the Cave, Plato distinguishes between people who mistake sensory knowledge for the truth and people who really do see the truth.” (See Philosophyzer).

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.

Judicial error regarding HOAs as mini-governments and state actors

Two cases directly dealing with HOAs as mini or quasi governments by means of state actions tests have come to my attention: Brock v. Watergate and Westphal v. Lake Lotawana.[1] (The question of an HOA being a state actor is not raised, but that a specific act of the HOA is a state action. The questions are fundamentally different.) The decisions were based on the public functions (company town) test and one of the US Supreme Court criteria, the “close nexus” test.[2]

Here the question of an HOA being a municipality is linked to showing a comparison with company towns (established by corporations to provide housing for their employees) under the public functions test, which was held to be a municipality. The Court then makes the giant leap to hold that since the HOA was not a company town, and therefore not a municipality, none of its actions can be considered a state action. The Court’s illogical conclusion is that no act of a private entity can be considered a state action, because the entity is not a municipality! This attitude makes a mockery of state action/actors laws that protect citizens from quasi-governments. (Think about this after reading the excerpt below.)

The 1987 Florida Brock opinion, just 4 years after the court quoted Wayne Hyatt’s opposing view in Cohen Hill (see note 2), held that:

A homeowner’s association lacks the municipal character of a company town. In the case of an association, the homeowners own their property and hold title to the common areas pro rata. Moreover, the services provided by a homeowners association, unlike those provided in a company town, are merely a supplement to, rather than a replacement for, those provided by local government. As such, it cannot be said that the homeowners association in this case acts in a sufficiently public manner so as to subject its activities to a state action analysis. Moreover, the association’s maintenance, assessment, and collection activities are not sufficiently connected to the State to warrant a finding of state action. The state cannot be implicated in the association’s activities solely because the association is subject to State law. We conclude that the association in this case does not stand in the position.

(The Court did not realize that most HOA common areas and facilities are not owned by the members, but by the HOA corporation. The members are third-party beneficiaries. The second sentence above is not accurate.)

In further shocking dicta (unsupported legal authority for statements) in the above quote (see To Be in note 2), the Court declared that HOA services are merely a supplement to local government and that as a supplement its acts are insufficiently municipal in nature. Say what?

Well, I got news for the Court. Applying the “common meaning of the word doctrine” shows that “to supplement” means “to complete, add to, or extend by a supplement” and a “supplement” means “something added to complete a thing, supply a deficiency, or reinforce or extend a whole.”  With this definition the HOA would be a part of local government to complete it or supply a deficiency.  The HOA is a municipality!

Sadly, the narrow focus on individual and separate acts and actions to determine the involvement of the state in the functions and activities of the HOA is misguided.  Rather, it is the collection of the numerous acts of the HOA that should be used to determine whether or not the HOA is an arm of the state and stands in place of the state.  Consider for example, does local government supplement state government?  Does town local government stand in the place of state government?

However, based on the irrational argument used in Brock, as quoted above, the Court ruled that the HOA “does not stand in the position of a government.”

 

In the 2003 Missouri Lake Lotawana opinion, the Court reversed the trial court’s ruling, asking for a declaratory judgment, using the irrational opinion in Brock and held that the plaintiff’s allegations “require state action, and that, here, there is no state action because the Association is not a state agent. . . . the trial court is effectively saying that Mr. Westphal can have no claim because the Association is not a state actor.”

On the other issues the plaintiff directly alleged state action, arguing that,

[T]hat the Association’s conduct is state action because the Association is a quasi-governmental entity.  He maintains that the Association ‘operates as a ‘mini-government’ because it raises money through dues, has an elected governing body, enacts rules and regulations, and enforces such rules through the court system. In support of this argument, Mr. Westphal relies on [Chesus and Terre du Lac].[3]

Referring to the two cases, the Court concluded,

While both cases discuss how a homeowner’s association operates as a “quasi-governmental entity,” neither is authority for the concept that an association’s “quasi-governmental” actions are state actions. Mr. Westphal fails to cite any authority to support his argument that the action of a quasi-governmental entity is state action.

First, the Court selectively only used the term “quasi” and ignored “mini” as in stated Chesus. “Mini,” of course, speaks of a small municipality, yet a municipality. Both cases simply, without further ado, quote the same Wayne Hyatt statements as I quoted in To Be (see note 2) that contain both words.

And the Court is technically correct with regard to a lack of a court finding, but taking such a view makes a mockery of the law and is highly illogical. As argued since “quasi” means “like,” then any action of a quasi-government must be, a quasi-state action. The degree of “quasi” must extend to state actions, too. Stop the “word games”!

“Quasi” must be defined, but not in terms of the public functions test or private entity devise. It must be defined in accordance with our constitutional system of government that cannot allow for outlaw governments to stand alongside constitutional local government.

This commentary, somewhat technical at times, demonstrates the failure of the courts to address the fundamental issues that HOAs are mini-governments, and that by the collective functions and actions of HOAs there is clear and convincing evidence to make the case that they are indeed state actors. The whole is greater than the sum of its parts.

(As a reminder, I am not a lawyer and I simply offer my views on HOA-Land.)

Notes

[1] Brock v. Watergate, 502 So.2d 1380 (Fla. 4 Dist. App. (1987); Westphal v. Lake Lotawana, 95 S.W.3d 144 (Mo. App. 2003).

[2] See in general, To be or not to be a mini or quasi government? Hyatt said ‘yes’; Do state HOA Statutes Establish HOAs as State Actors?

[3] Chesus v. Watts, 967 S.W.2d 97 (MO. APP. 1998);  Terre du Lac Assn v. Terre du Lac, Inc., 737 S.W.2d 206 (MO. App. 1987)

To be or not to be a mini or quasi government? Hyatt said ‘yes’

The controversy over whether or not HOAs are mini-governments or quasi-governments needs to be fully understood.  While I have written extensively on this topic,[1] allow me to take another peek into the controversy.

As an eye opener to many, I have extensively quoted Wayne Hyatt’s[2] 1976 statement on HOAs as mini-governments, as cited in the 1983 California case, Cohen v. Kite Hill.[3]  (My emphasis).

 

In a thoughtful article[4] . . . Hyatt and Rhoads note the increasingly “quasi-governmental” nature of the responsibilities of such associations: “The other essential role directly relates to the association’s regulatory powers; and upon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a ‘mini-government,‘ the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal. In many cases, it also provides security services and various forms of communication within the community. There is, moreover, a clear analogy to the municipal police and public safety functions. All of these functions are financed through assessments or taxes levied upon the members of the community, with powers vested in the board of directors, council of co-owners, board of managers, or other similar body clearly analogous to the governing body of a municipality. Terminology varies from region to region; however, the duties and responsibilities remain the same.”

“Because each owner automatically becomes a member of the association upon taking title … the association has the power, and in many cases the obligation, to exert tremendous influence on the bundle of rights normally enjoyed as a concomitant part of fee simple ownership of property.”

“With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: “The business and governmental aspects of the association and the association’s relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors…. This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing.” [Sound familiar?]

Yet, this recognized international figure’s statements were ignored and not cited in a number of subsequent decisions. Instead, the courts preferred the antiquated, non-HOA decisions of the 1946 and 1948 “company town,” public functions test decisions in Marsh v. Alabama and Shelly v. Kraemer. These decisions predated the current HOA concept and legalities created in 1964 and were relied on.[5]  Like the “walking dead,” Marsh should be shot in the head and put away for good!

Now, to fully understand the issue we need to play the lawyer game and examine and parse the meanings of words and phrases.  Sorry, we must because that’s what HOA attorneys do — they can’t help it.

What is a mini-government? A quasi-government?  Following the recognized common meaning of words doctrine, “mini” means small and “quasi” means like.”  So, are we talking about small public governments? If so, I think this term answers the question that HOAs are small public governments.

Or are we talking about governments like public governments?  “Like” implies not really, but has the feel, or aura, or legalities of a public government.  If so, to what extent does a government become a public government?  How much “likeliness” is needed?  To what extent should homeowners have “like” constitutional protections?  All of them or some?  Or just some that give the appearance of constitutional rights and freedoms?

It seems that HOAs already have a number of “like” protections, but totally deficient and failing to protect the people.  They treat the HOA members as if they are “like” US citizens, having surrendered their citizenship.  This cannot be tolerated in a nation that prides itself as the ideal democratic country in the world.  Not at all!

It’s time to stop playing the HOA lawyer “word games” and accept the reality that HOAs are outlaw governments and must be held accountable under the Constitutional, as is required of all other governing bodies including those under Home Rule statutes.

References

[1] See in general: Do state HOA Statutes Establish HOAs as State Actors? (2007); The Constitutionality of state protected homeowners associations (2009) (Discussion on Hyatt’s view); HOA Case History: state actors or mini/quasi government (2011).

[2] Wayne Hyatt was a prominent figure in the promotion of HOA-Land as well as an important person in creating CAI in 1973, serving as its second president.

[3] Cohen v. Kite Hill, p. 5-6, 142 Cal App 3d 642 (1983), citing Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 799 [171 Cal.Rptr. 334]). Cohen has been cited in Terre Du Lac Ass’n, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206 (Mo. App. 1987); Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

[4] “Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations” 12 Wake Forest Law Review at page 915, (1976).

[5] Brock v. Watergate, 502 So.2d 1380 (Fla. 4 Dist. App. (1987) (close nexus dicta); Midlake v. Cappuccio, 673 A 2d 340 (PA. Super. 1996); S.O.C. v. Mirage Casino-Hotel, 43 P 3rd 243 (Nev. 2001); Westphal v. Lake Lotawana, 95 S.W.3d 144 (Mo. App. 2003) (“Mr. Westphal fails to cite any authority to support his argument that the action of a quasi-governmental entity is state action.”)