The writing is on the wall for HOA reforms

Although the Arizona Supreme Court has not yet decided to hear Tarter v. Bend (CV 21-0049), my 44 page Pro Se amicus curiae brief is a matter of public record, regardless.  The case about a defamation suit by the HOA president, also an attorney and a limited-purpose public figure, raised constitutional issues of public speech with respect to questions of HOA governance. 

Selected excerpts follow.

As with the issue in Dombey (Dombey v. Phoenix Newspapers, Inc) . . . failing to present the question of Tarter’s status as a possible public figure denied the jury from considering the issues of protected free speech on public issues.

Kosor (NV) was sued on the basis of his criticism  and distribution of a pamphlet and letter at a board meeting seeking a seat on the board of directors.

“Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.”

The impetus behind this view can be laid to the heavy lobbying of state legislators, judges, the public and the media by the Community Associations Institute (CAI). From its 2016 white paper,

“Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. . . . Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement.”

In response to my Arizona Supreme Court pro se amicus brief in Gelb v. DFBLS (CV-10-0371-PR) CAI attorney Jason Smith wrote,

“It is clear from the that the amicus curiae [referring to me] simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”

[I called to the Court’s attention a question of a SLAPP lawsuit against Brendt.]  The issue of an HOA SLAPP lawsuit against a member is in the interest of general public and of statewide importance, and also of national concern, the impact on community associations is certainly substantial. This Court should, sua sponte, consider Tarter’s legal action as a HOA politically motivated strategic lawsuit  against member participation.

I urge the Court to apply the long overdue correction  of  Plessy v. Ferguson by Brown v. Bd of Education to the long overdue and needed corrections to the unconstitutional HOA legal scheme.  As with Brown, America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. 

Pro Se Bendt amicus brief accepted by AZ Supreme Court

My amicus brief was accepted and is now part of the record. The court has yet to decide if it will hear the case, which could be weeks – months way.

“Arizona Supreme Court
Civil Petition for Review – Appeal
CV-21-0049-PR TIM TARTER et al v DOUGLAS BENDT et al

“12. 25-Jun-2021 Amicus Curiae Staropoli filed an ‘Amicus Curiae Brief of George K. Staropoli in Support of Appellants’ on June 17, 2021 and a ‘Motion to Appear Amicus Curiae Brief of George K. Staropoli in Support of Appellants’ on June 24, 2021. After consideration, [163736]

IT IS ORDERED the ‘Motion to Appear Amicus Curiae Brief of George K. Staropoli in Support of Appellants’ is granted. The brief shall be filed as of June 17, 2021. Tracie K. Lindeman”

* * * *

I stated my value, in part, as:

“The issues addressed in this case are of general importance and statewide but also national concern, as the impact on community associations is certainly substantial and states look to other states for guidance in this developing area of law. 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.

“Professor Evan McKenzie in his landmark 1994 book (Privatopia: Homeowners Associations and the Rise of Residential Private Government (1994)) acknowledged the fact that ‘HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.’”

The continuing saga of Bendt and public speech in HOAs

Earlier I had reported on Arizona homeowner Bendt who dared speak out and criticize her HOA president and BOD using social media, emails, and pamphlets among other statements. See HOA limited-purpose public directors and officers  and Limited purpose public HOA board; slander; AZ HB 2052. What courage and determination to fight against her HOA president and 2 board members who are attorneys.

 With all respect and encouragement I have supported her fight to defend  herself from accusations of defamation. In her appeal, which she lost, the HOA admitted that the president was a limited-purpose public figure with the acceptance that social media and that the HOA is a public forum;  with protected free speech in regard to matters of members’ concern and HOA governance issues. Bendt protested an election and alleged improper and wrongful acts by the president. The result was  a well calculated, in my view, personal defamation attack on Bendt to avoid the larger, broader aspects that protect members’ criticisms, with certain restraints.

Her defense has now moved on to the AZ Supreme Court, waiting for acceptance of her petition. Roughly less than 10% of supreme court petitions for review are accepted. Good luck to Bendt!  If accepted, then her case is scheduled for oral arguments and a decision in a few months.

 Stay tuned to this case of widespread importance to homeowner rights.

 BTW, homeowner protections contained in AZ HB 2052 are lost as the bill died in Rules committee, which is controlled by the leaders of the majority party.

 For the record, I am not a lawyer nor am I giving legal opinion or advice.

Glassel HOA Murders Redux

The State of Arizona not only brought the people the Orme School District and the Miranda decisions, but the State also brought the little known Glassel HOA board murders. This April will be the 21st anniversary of sentencing Glassel to death for the shooting murders of two directors, Nila R. Lynn, 69, and Esther LaPlante, 57,  at a Ventana Lakes HOA board meeting in April 2000.

I followed this case from the very beginning during my first year as an HOA reform advocate.  I had met and talked with Richard Glassel, his wife Susan, his Public Defender, Dr. Jack Potts the psychiatrist who evaluated Glassel as not competent to stand trial, and several reporters; I also attended and observed the 5 day murder trial in 2003. 

A few years later about 2010, I don’t recall exactly when, I was approached by the Office of the State Capital Post-Conviction seeking  my involvement with the  Glassel trial.  The Office reviews death penalty cases on behalf of the condemned. They asked if I would talk with Glassel, seemingly they were having a problem, and I responded by saying it would not help because I had tried to talk to him on the only day he appeared in court, but he was non-communicative, “living in his own world.” Its pending petition for case review was denied as a result of Glassel’s death in 2013.

For more detailed coverage, you can follow this 20/20, Dateline, 48 Hours style murder case at Glassel HOA Murders Redux.

NV supreme court upholds HOAs as public forums

Last week the Nevada Supreme Court, in Kosor,[i] citing California Davis-Stirling law and Damon[ii] and Kite Hill[iii] opinions, affirmed HOAs as public forums. Issues relating to HOA governance are matters of public interest protected by free political speech.

SPOTIFY Audio PODCAST of post

In short, legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel. At heart: Are the statements made in good faith and truthful?

Kosor filed an anti-slapp motion in defense that argues that the statements at issue were protected under free public speech —  statements that were of general interest to the public.  In summary, here’s what the Court upheld, following California’s rulings and law.

Accordingly, we conclude that Kosor met his prima facie burden to demonstrate that the statements in question were all made in public forums on a matter of public interest.

“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’ than that in Damon, ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”

“it appears that Kosor’s post, like his HOA meeting commentary, campaign flyer, and printed letter, sought to open conversation among Southern Highlands community members and enlist their participation in the community’s decision-making process.

Does your state protect your right to dissent in an HOA?  Why not?

References


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

[ii] Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205 (Ct. App. 2000).

[iii] Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209 (Ct. App. 1983).