CAI's take on the Twin Rivers decision


Here is what CAI has to say:
While CAI believes that associations should be reasonable in creating rules regulating the free expression of homeowners in their associations, the breadth of the opinion in the Twin Rivers case could be problematic

Let's cut through the PR. CAI filed an amicus curiae brief in this case in support of the association. They were behind the association and against the owners all the way. This "while CAI believes associations should be reasonable" business is part of CAI's ongoing effort to, on the one hand, appear to be the voice of reason while, on the other hand, they argue at every turn in every state legislature for virtually unlimited board authority over the residents. It is an attempt to let CAI portray itself as supporting limits on association abuses, while in fact the organization opposes just about any form of oversight or regulation that would actually serve as a real limitation on unfettered BOD discretion. "Be reasonable" without any oversight is just another way of saying that owners shouldn't have any rights, and association boards should be free to do whatever they want, without any meaningful oversight and with nobody to hold them accountable to any standard other than their own view of what is "reasonable." Some associations disregard not only the law, but their own governing documents. The Hanrahan report that is discussed in the Twin Rivers case talks about these out-of-control associations, and the lack of any way to rein them in.

The Twin Rivers case is about an association government that limited display of political signs, kept the insurgents out of the meeting room, and turning the development's newspaper into a one-sided platform where the challengers were regularly (and viciously) vilified. That, and more. All this had the effect of keeping people from effectively challenging the ruling elite. And CAI sided with them. Does that seem reasonable to you?

One final point. CAI correctly picks out the key paragraph of the Association's brief:

The Twin Rivers Homeowners' Association argued to no avail that subjecting the association to constitutional standards would "alter the very nature of planned developments, create chaos, erode private property rights, limit the freedom to contract, discourage new development, cause associations to lose their flexibility, and infringe the rights of the majority."

That is really the essence of the association's (and CAI's) argument. They tried to scare the justices into believing that if they allowed people to post political signs the sky would come crashing down around us all. Now, does anybody besides CAI find it unusual that this ridiculous argument was "to no avail"? How could any rational human believe that forcing associations to respect the simple expressive liberties that this country was founded to protect could possibly bring about this parade of horribles? This case is about power, and that silly argument is just part of the usual effort to dissuade courts from limiting the power of association directors (aided by their attorneys) over the residents.

I don't know whether this appeal to the New Jersey Supreme Court will actually happen. Of course, the decision is up to the Twin Rivers HOA and their attorneys (there were three of them taking my deposition). But CAI may fear losing the case in front of the highest court in a major state. At this point I suppose they can continue to criticize the decision as an aberration from a "liberal" panel (whatever that means), and go on doing business as usual. But losing it in the court of last resort (for New Jersey law and the New Jersey Constitution) would put a stop to that once and for all.

ps:
As I have said many times, I believe that CAI performs valuable functions in its capacity as an organization that supports the professionals who work for community associations. Training lawyers and managers is extremely important, and CAI is the pre-eminent organization in that capacity. It is also important as a networking organization for these professionals. Certification of managers, who in most states aren't even licensed, is valuable as well. But in its activities as a lobbying organization, I think CAI continues to take positions that are very troubling and are inconsistent with CAI's own stated views on local democracy. In my opinion, if CAI believes in local democracy within community associations, as it always says it does, the organization should be filing its amicus briefs in support of expanding expressive liberties for owners, instead of supporting the power of BODs to restrict those liberties. Without free and open discourse, democratic procedures are just a hollow shell. As we all know, they had meaningless elections in Iraq before the fall of Saddam. They had meaningless elections in the USSR. No, I don't think community associations are that bad. But the principle holds. You can't argue that association boards should be able to restrict expression according to what they think is "reasonable" and then argue that association elections are a meaningful expression of local democracy, and therefore no outside oversight is needed. The opposite is true. If we could be sure that the elections in associations were based on free and open debate, with fair procedures and protections for minority rights, then there would be less need for outside intervention in the affairs of community associations. The underlying structural problem is that CAs are corporations. We are delivering local government services through an organizational form that is designed for top-down direction and efficiency, not democracy. The challenge is to make them more democratic without producing paralysis, endless debate, and inefficiency. But too much democracy in HOAs is not the problem right now and I think we can cross that bridge if we ever come to it.