Enough Already, Please
It's time to call out the media on their trained-seal imitation when it comes to Maricopa County Sheriff Joe Arpaio, America's most costly sheriff.
I don't blame Joe, much; it's like the scene in William Steig's Dr. De Soto, where the fox starts to feel remorse that he's going to eat the mouse dentist who cured his toothache, but then he thinks, I can't be blamed; I'm a fox, it's what I do. Joe's like that, it's what he does. It's the media that dotes on his every absurd utterance that I blame.
For example, he holds a press conference that if the L.A. County Sheriff doesn't want to incarcerate Paris Hilton, then he'll do it, and treat her like every other prisoner. The chances of the L.A. County Sheriff transferring somebody with a drunk driving conviction to Arizona are about the same as my chances of starting the 2008 All-Star Game for the American League. But all the TV stations dutifully trooped to the interview and gave him airtime for a stupid fantasy. Enough is enough, it's not embarrassing to him, it's embarrassing about us.
And could somebody do a cost-benefit analysis of the MCSO as a government program? It's long past time we looked at actual Maricopa County crime statistics, and the long and expensive list of court verdicts and settlements that the taxpayers have had to foot under Arpaio's management. The sheriff's job is actually an administrative one, and confusing press releases with results wouldn't pass muster with other programs; why does this one get a pass, just because, as the saying goes, that's entertainment?
Enough outrage for a moment. This week did prove that both of my editor and me are too dependent on spell-check. I left out the "L" in "public" one place in the column, and we both missed it. Back in college ("the thrill of victory, the agony of turkey tetrazini"), getting that misspelling into a newspaper would mean that I wouldn't have to buy myself a beer for weeks. Especially when the editor pulled that sentence out for a bold block quote. Now it's just embarrassing.
PSST: EMPEROR ARPAIO HAS NO CLOTHES
East Valley Tribune, Aug. 26, 2007
Isn't past time we stopped finding Sheriff Joe Arpaio amusing?
You bet he's fun. Nobody in politics has a keener sense of what cheap shot will capture vast public attention. He's larger than life, a Macy's parade cartoon balloon, who can say absolutely anything because nobody takes him seriously anymore. And he's a wonderful foil, too. Everybody knows the most dangerous place in Maricopa County: Between Joe Arpaio and a microphone.
But maybe we should realize that by now, it's not really about Joe Arpaio anymore; it's about us. Two items -- small matters in the vast universe of Arpaio outrages, mere motes in the eye -- have put me round the bend, and I hope you as well.
The first was the Sheriff's decision that naturalized citizens had to provide papers to visit the county jail, but natural-born citizens didn't. Did you know that all U.S. citizens are equal, except that some are more equal than others? Nobody did, at least not until Arpaio decided otherwise. After some adverse publicity, Arpaio suddenly reversed course and dropped the policy. So, see -- he is capable of shame; we just have to make a big enough fuss.
Then earlier this month, the Arizona Court of Appeals issued an opinion in a long-running dispute between the Sheriff's Office and the West Valley View newspaper. You won't be shocked to learn that Arpaio's office issues buckets of press releases, which are emailed to a vast Arizona media list, which treats them the way Shamu treats small fish -- swallowing them eagerly, because it's all part of the act.
In 2005, the Sheriff's Office removed the West Valley View from the email list for press releases produced and distributed at public expense. The newspaper asked why, and Arpaio's public information officer told them that the Sheriff wasn't happy with his coverage. "We've sent multiple story ideas, multiple releases and quite frankly don't see them covered," said Arpaio's flack, so it wasn't "fruitful" to inform the newspaper, and its readers, anymore.
The newspaper then filed a public records request for press releases, and when Arpaio refused to respond, filed suit and two years later, both the trial court and Court of Appeals have held that the Sheriff's Office must provide the West Valley View with copies of all press releases when issued. The Court of Appeals called the Sheriff's actions "arbitrary and capricious," lacking "any principled reason," and, more tellingly, "petty."
Arpaio's dispute with the West Valley View truly was petty (although perhaps not petty enough; just watch him appeal to the state Supreme Court). But Phoenix-area media long have been one big co-dependent enabler of Joe Arpaio. He says "Jump!" and the media collectively reply, while airborne, "How high?" They give him air and space, and never manage to mention that he's a glory-grabbing, inefficient, and often brutal failure -- even when his pettiness is targeted at one of them, a newspaper that Arpaio wants to punish because it doesn't give him sufficiently positive coverage.
People used to talk about the "Imperial Congress," but those guys were pikers compared with Arpaio, a public official who has completely obliterated the line between the public interest and his political interests and fame. He's honest and isn't financially corrupt -- but the MCSO isn't a public agency anymore, it's self-aggrandizing empire, a cult devoted to the greater glory of Arpaio. But as long as talk radio and TV get "hot" stories, or he's useful to certain other politicians in their campaigns, we all shrug our shoulders and say, "Oh, that's just Joe."
Well, no, it's not just Joe. It's us. We may not be an out-of-favor newspaper, or someone arrested -- but not convicted -- denied medical care or brutally injured, or a naturalized U.S. citizen, but who knows where Maricopa County's finest purveyor of press release baloney will strike next?
Somebody needs to start telling people that the emperor has no clothes. Even if you do get taken off the press release distribution list.
Tuesday, August 21, 2007
Tomorrow's Iraq News (and Views) Today!
I may be writing about tomorrow's Iraq news (and views) today (which was my suggested headline, but the editor went more prosaic), but it's been the kind of week so that you're only getting Sunday's column on Tuesday. The CNN/Gallup poll is pretty illuminating, though.
IRAQ REPORT: WHAT IT WILL SAY, WHAT WE'LL THINK
East Valley Tribune, Aug. 19 2007
Here are my fearless predictions for September. First, the much-anticipated September report from Gen. David Petraeus and Ambassador Ryan Crocker is going to say that we've made progress in certain ways in certain places in Iraq, and that we need more patience in case there's a chance, no matter how slim and no matter how long it may take, that we could salvage something in Iraq.
Second, everyone will find something in the report that supports their pre-existing views. It will repeat the reception of the Baker-Hamilton commission report, where people who supported the war, and those who didn't, both found plenty of evidence for their previous positions, just as both slavery supporters and opponents each could quote extensively from the Bible.
After all, the report, despite all the admiration of these two fine and incredibly talented government employees, will be a Bush administration report, as requested by Congress. Petraeus and Crocker are Bush appointees. They may have gotten Senate confirmation, and supporters may vouch for their nearly mystical competence and insight, but they're still political appointees. (The Tribune agrees; recall the July 17 editorial, "There's no such thing as non-political appointments.")
We'll get the Iraq version of the Secretary of the Army telling us that things are going just fine in our military hospitals. In the absence of any independent reporting, the secretary did think things were just fine at Walter Reed, until the Washington Post reported otherwise.
Petraeus and Crocker are Bush appointees. If they don't support Bush administration policy, why would they be in the Bush administration? No matter how incompetent the president, he or she deserves to have political appointees who believe in what they're doing. (If only Michael Brown had believed that FEMA had a job, maybe Bush's popularity might be, oh, in the upper-30's.)
Just as all reality TV shows seem to copy each other shamelessly, the process around Petraeus-Crocker will repeat what happened with Baker-Hamilton. First, and most importantly, it won't change anything. Bush is still president, he wants to keep fighting in Iraq, and there aren't enough war opponents in Congress to override his veto. Without two-thirds of Congress opposing the war, nobody will cut off funding for troops while they're deployed.
Second, we'll have another spasm of "anti-politics," like the paeans to bipartisanship that greeted Baker-Hamilton. We Americans love democracy as a concept, but we hate politics. We want, in theory, that the people -- the great, indifferent American people -- elect their leaders and determine the course of our nation generally, but when it comes to specific issues, Wise Men prefer that we do as Wise Men say.
Is it such a surprise that on issues where we are sharply divided, that our arguments are sharp and divisive? How are we supposed to hash out difficult issues, like Iraq or immigration, if we don't argue, strenuously?
Petraeus-Crocker will talk about progress and not pulling the plug prematurely, but it also will note that the Army can't sustain surge troop levels more than a few more months, so we'll have to reduce and redeploy troops anyway. Petraeus-Crocker also will note that the point of the exercise, to create circumstances allowing political reconciliation in Iraq, hasn't happened (and that developments politically aren't moving in the right direction). Petraeus-Crocker won't necessarily note that some of the recent progress -- in converting Sunni insurgents in Anbar province to help fight al-Qaida in Mesopotamia -- actually may be undermining national political reconciliation by giving local Sunnis resources, and arms, independent of the central government.
On Iraq, we're divided now, we'll be divided in September, and a report by two Bush administration appointees won't change that. In fact, I can give you the numbers, based on a CNN poll conducted earlier this month: 53 percent suspect the report will try to make things sound better than they actually are, 43 percent said they will trust the report.
Not only can I predict what Petraeus and Crocker will say, I already know what people will think about it: What they already think about it.
I may be writing about tomorrow's Iraq news (and views) today (which was my suggested headline, but the editor went more prosaic), but it's been the kind of week so that you're only getting Sunday's column on Tuesday. The CNN/Gallup poll is pretty illuminating, though.
IRAQ REPORT: WHAT IT WILL SAY, WHAT WE'LL THINK
East Valley Tribune, Aug. 19 2007
Here are my fearless predictions for September. First, the much-anticipated September report from Gen. David Petraeus and Ambassador Ryan Crocker is going to say that we've made progress in certain ways in certain places in Iraq, and that we need more patience in case there's a chance, no matter how slim and no matter how long it may take, that we could salvage something in Iraq.
Second, everyone will find something in the report that supports their pre-existing views. It will repeat the reception of the Baker-Hamilton commission report, where people who supported the war, and those who didn't, both found plenty of evidence for their previous positions, just as both slavery supporters and opponents each could quote extensively from the Bible.
After all, the report, despite all the admiration of these two fine and incredibly talented government employees, will be a Bush administration report, as requested by Congress. Petraeus and Crocker are Bush appointees. They may have gotten Senate confirmation, and supporters may vouch for their nearly mystical competence and insight, but they're still political appointees. (The Tribune agrees; recall the July 17 editorial, "There's no such thing as non-political appointments.")
We'll get the Iraq version of the Secretary of the Army telling us that things are going just fine in our military hospitals. In the absence of any independent reporting, the secretary did think things were just fine at Walter Reed, until the Washington Post reported otherwise.
Petraeus and Crocker are Bush appointees. If they don't support Bush administration policy, why would they be in the Bush administration? No matter how incompetent the president, he or she deserves to have political appointees who believe in what they're doing. (If only Michael Brown had believed that FEMA had a job, maybe Bush's popularity might be, oh, in the upper-30's.)
Just as all reality TV shows seem to copy each other shamelessly, the process around Petraeus-Crocker will repeat what happened with Baker-Hamilton. First, and most importantly, it won't change anything. Bush is still president, he wants to keep fighting in Iraq, and there aren't enough war opponents in Congress to override his veto. Without two-thirds of Congress opposing the war, nobody will cut off funding for troops while they're deployed.
Second, we'll have another spasm of "anti-politics," like the paeans to bipartisanship that greeted Baker-Hamilton. We Americans love democracy as a concept, but we hate politics. We want, in theory, that the people -- the great, indifferent American people -- elect their leaders and determine the course of our nation generally, but when it comes to specific issues, Wise Men prefer that we do as Wise Men say.
Is it such a surprise that on issues where we are sharply divided, that our arguments are sharp and divisive? How are we supposed to hash out difficult issues, like Iraq or immigration, if we don't argue, strenuously?
Petraeus-Crocker will talk about progress and not pulling the plug prematurely, but it also will note that the Army can't sustain surge troop levels more than a few more months, so we'll have to reduce and redeploy troops anyway. Petraeus-Crocker also will note that the point of the exercise, to create circumstances allowing political reconciliation in Iraq, hasn't happened (and that developments politically aren't moving in the right direction). Petraeus-Crocker won't necessarily note that some of the recent progress -- in converting Sunni insurgents in Anbar province to help fight al-Qaida in Mesopotamia -- actually may be undermining national political reconciliation by giving local Sunnis resources, and arms, independent of the central government.
On Iraq, we're divided now, we'll be divided in September, and a report by two Bush administration appointees won't change that. In fact, I can give you the numbers, based on a CNN poll conducted earlier this month: 53 percent suspect the report will try to make things sound better than they actually are, 43 percent said they will trust the report.
Not only can I predict what Petraeus and Crocker will say, I already know what people will think about it: What they already think about it.
Tuesday, August 14, 2007
The Truth Is Alien To Russell Pearce
Even more fun for me than writing about homeowner associations is yet another Pearce-vs.-Coppersmith op-ed smackdown! We get emails, this one from LARJOROH20@aol.com:
To which I could respond, in its entirety:
I love it when I can call something ironic, and it's actually ironic.
My suggested headline was above, which I think worked better than the editor's choice, but he's the editor and I'm not. The Tribune also doesn't like "Chair" and instead insists on "chairman." And so it goes.
PEARCE SHOULD TRY THE TRUTH SOMETIME
East Valley Tribune, Aug. 12, 2007
As far as state Rep. Russell Pearce, R-Mesa and chairman of the powerful House Appropriations Committee, is concerned, the truth might as well be in Spanish. Pearce is less than monolingual; when it comes to facts, he can't understand English, either.
Pearce has a history of repeating things that just aren't true. He famously sent an email to friends and supporters, forwarding a message claiming that Jews were "all-powerful masters of the media" who twisted public opinion against white guys, with a handy link to a neo-Nazi website. He later apologized for "not being more careful" and "not reading the attachment in its entirety" -- thus raising the question of how much of the white supremacy diatribe he read before thinking, "Hey! This sounds great!"
He's also fond of repeating unverifiable statistics, like that 80 percent of violent crimes are caused by illegal immigrants ("Ridiculous," says the Phoenix Police Department) or that 95 percent of all outstanding homicide warrants in Los Angeles target illegals ("I don't know where those [figures] come from," say both the LAPD and county sheriff's office).
The latest victims of Pearce's fact-free style are the city of Phoenix and Mayor Phil Gordon. Last week in the Tribune, Pearce ponderously wondered "what goes through the mind of a man like Phoenix Mayor Phil Gordon, when he attends the funeral of a police officer killed by an illegal immigrant, then returns to his office and insists that Phoenix police be prohibited from determining a criminal suspect's immigration status."
That sentence sets a record, even for someone with Pearce's spotty relationship with accuracy. As Mary McCarthy said of Lillian Hellman, every word is a lie, including "and" and "the."
Since 2006, Phoenix police have arrested some 3,500 illegal immigrants for felonies and serious misdemeanors. Those arrested were delivered to the county sheriff. The "35 to 45 percent of county jail populations" cited by Pearce as illegal immigrants arrested and jailed for crimes other than illegal entry? They are there because Phoenix arrested them.
Contrary to Pearce's claims, Phoenix also has found, and turned over to Immigration and Customs Enforcement, some 2,000 illegal immigrants in drop houses (with 40 found in one raid just last week). The 5,500 illegals arrested and remanded by Phoenix PD exceed the totals by any other state or local agency by ten-fold -- including the Maricopa County Sheriff's Office.
(Note that when I write about Mayor Gordon, my Tribune editorial overlords demand that I disclose that I've contributed to his reelection campaign. Pearce's son is a sheriff's deputy, so when Pearce writes op-ed mash notes to Joe Arpaio, he's buttering up his son's boss -- without any disclosure required.)
Need more? Phoenix is the only city with full-time embedded ICE agents; 10 investigators work out of the Phoenix PD. Even Bill O'Reilly -- Bill O'Reilly! -- doesn't call Phoenix a "sanctuary city."
But the topper is Pearce's claim that Phoenix Police Officer George Cortez, Jr. was "killed by an illegal immigrant." Cortez was shot by Edward James Rose, who has an Arizona birth certificate -- and is just as much an American citizen as Russell Pearce. Rose's girlfriend accomplice and Officer Cortez both have Hispanic names, so Pearce apparently leaped to his usual, comfortable conclusion that any crime must be caused by illegal immigrants.
A Phoenix cop making a traffic stop is supposed to make an instantaneous, correct judgment about immigration status, when Pearce has a week and his resources as a state legislator and gets it wrong? Oh, wait -- it's not like Pearce ever worries about getting facts wrong.
Pearce refuses to check his claims, but we've learned to expect that. But he needs to stop slandering other elected officials serving the public while respecting the truth and the law -- and Pearce especially has no business lying about a policeman's death.
Good ideas don't need lies told about them. Why, then, does Russell Pearce so often not tell the truth?
Even more fun for me than writing about homeowner associations is yet another Pearce-vs.-Coppersmith op-ed smackdown! We get emails, this one from LARJOROH20@aol.com:
Oh, and of course you, Copperhead, always tell the truth and never exaggerate your liberal left wing garbage. It must be wonderful to be so fault free as you evidently think you are.
To which I could respond, in its entirety:
I always try to respond to thoughtful reader comments.
Sam Coppersmith
I love it when I can call something ironic, and it's actually ironic.
My suggested headline was above, which I think worked better than the editor's choice, but he's the editor and I'm not. The Tribune also doesn't like "Chair" and instead insists on "chairman." And so it goes.
PEARCE SHOULD TRY THE TRUTH SOMETIME
East Valley Tribune, Aug. 12, 2007
As far as state Rep. Russell Pearce, R-Mesa and chairman of the powerful House Appropriations Committee, is concerned, the truth might as well be in Spanish. Pearce is less than monolingual; when it comes to facts, he can't understand English, either.
Pearce has a history of repeating things that just aren't true. He famously sent an email to friends and supporters, forwarding a message claiming that Jews were "all-powerful masters of the media" who twisted public opinion against white guys, with a handy link to a neo-Nazi website. He later apologized for "not being more careful" and "not reading the attachment in its entirety" -- thus raising the question of how much of the white supremacy diatribe he read before thinking, "Hey! This sounds great!"
He's also fond of repeating unverifiable statistics, like that 80 percent of violent crimes are caused by illegal immigrants ("Ridiculous," says the Phoenix Police Department) or that 95 percent of all outstanding homicide warrants in Los Angeles target illegals ("I don't know where those [figures] come from," say both the LAPD and county sheriff's office).
The latest victims of Pearce's fact-free style are the city of Phoenix and Mayor Phil Gordon. Last week in the Tribune, Pearce ponderously wondered "what goes through the mind of a man like Phoenix Mayor Phil Gordon, when he attends the funeral of a police officer killed by an illegal immigrant, then returns to his office and insists that Phoenix police be prohibited from determining a criminal suspect's immigration status."
That sentence sets a record, even for someone with Pearce's spotty relationship with accuracy. As Mary McCarthy said of Lillian Hellman, every word is a lie, including "and" and "the."
Since 2006, Phoenix police have arrested some 3,500 illegal immigrants for felonies and serious misdemeanors. Those arrested were delivered to the county sheriff. The "35 to 45 percent of county jail populations" cited by Pearce as illegal immigrants arrested and jailed for crimes other than illegal entry? They are there because Phoenix arrested them.
Contrary to Pearce's claims, Phoenix also has found, and turned over to Immigration and Customs Enforcement, some 2,000 illegal immigrants in drop houses (with 40 found in one raid just last week). The 5,500 illegals arrested and remanded by Phoenix PD exceed the totals by any other state or local agency by ten-fold -- including the Maricopa County Sheriff's Office.
(Note that when I write about Mayor Gordon, my Tribune editorial overlords demand that I disclose that I've contributed to his reelection campaign. Pearce's son is a sheriff's deputy, so when Pearce writes op-ed mash notes to Joe Arpaio, he's buttering up his son's boss -- without any disclosure required.)
Need more? Phoenix is the only city with full-time embedded ICE agents; 10 investigators work out of the Phoenix PD. Even Bill O'Reilly -- Bill O'Reilly! -- doesn't call Phoenix a "sanctuary city."
But the topper is Pearce's claim that Phoenix Police Officer George Cortez, Jr. was "killed by an illegal immigrant." Cortez was shot by Edward James Rose, who has an Arizona birth certificate -- and is just as much an American citizen as Russell Pearce. Rose's girlfriend accomplice and Officer Cortez both have Hispanic names, so Pearce apparently leaped to his usual, comfortable conclusion that any crime must be caused by illegal immigrants.
A Phoenix cop making a traffic stop is supposed to make an instantaneous, correct judgment about immigration status, when Pearce has a week and his resources as a state legislator and gets it wrong? Oh, wait -- it's not like Pearce ever worries about getting facts wrong.
Pearce refuses to check his claims, but we've learned to expect that. But he needs to stop slandering other elected officials serving the public while respecting the truth and the law -- and Pearce especially has no business lying about a policeman's death.
Good ideas don't need lies told about them. Why, then, does Russell Pearce so often not tell the truth?
Monday, August 06, 2007
Nothing Gets 'Em Riled Like HOAs
Writing about homeowner associations in the Tribune is guaranteed fun, as libertarian philosophy clashes with libertarian philosophy. Apparently, government has no business getting involved with private contractual arrangements, unless we don't like the results, in which case government needs to get involved. It's the original darkling plain, and you know what Matthew Arnold said about armies that fight on darkling plains. As Margo Channing says, fasten your seatbelts, it's going to be a bumpy night.
I love the phrase "dissident homeowners." Only in America (and not just New Jersey, either).
Supremes vs. Sopranos: New Jersey Rules for the HOA
East Valley Tribune, Aug. 5, 2007
It’s homeowner association time again, the Tribune op-ed column version of a Disneyland E-ride; I await your angry emails. The reason is that while we don't know what happened to Tony Soprano, the New Jersey Supreme Court did decide the Twin Rivers case.
Twin Rivers is a master-planned community in East Windsor, N.J., with about 10,000 residents. The HOA maintained roads and street lights and managed landscape maintenance, leaf collection, snow removal, and common facilities open only to residents and guests. The HOA also distributed a community newsletter, and limited signs to only one in a window and one outside, if within 3 feet of the residence.
Dissident homeowners sued the HOA to allow unlimited signs on private property and on common areas subject to reasonable restrictions. They also sued for "equal access" to the community newsletter, and for an injunction stopping the HOA president from using the paper "as his own personal political trumpet."
The dissidents lost at trial, but in 2006, an appellate court reversed, holding that the HOA, by taking over many traditionally municipal functions, exercised enough power over residents to become subject to the state constitution’s free expression and assembly and equal protection protections. Committee for a Better Twin Rivers v. Twin Rivers Homeowner's Ass'n, 383 N.J. Super. 22, 890 A.2d 947 (App. Div. 2006). Everybody then appealed, and on July 25, the state Supreme Court reversed, holding that HOAs could impose "reasonable" restrictions on sign-posting and access to the community newsletter without violating the state constitution. Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Asso'n, 2007 WL 2127686 (N.J. July 26, 2007); slip opinion is here.
The opinion reviewed both federal and state constitutional law. The U.S. Supreme Court, in the 1980 Pruneyard case, held that the First Amendment didn’t give people free speech rights in a privately-owned shopping center. Malls, like HOAs, perform what used to be municipal functions and exercise significant control, but there’s no First Amendment right to picket, leaflet, request petition signatures, or give speeches in a privately-owned shopping center.
However, the New Jersey state constitution’s free speech and assembly protections are greater than those in the U.S. Constitution. (Arizona courts haven’t gone beyond the federal constitution, and here mall owners can limit speech and petition-gathering; that’s the Mecham Recall Committee case. The case citation, and a 2004 summary of state-by-state decisions, is available here.) In prior cases, the New Jersey court had allowed leafleting on a private college campus and a regional mall. But in applying those precedents, the court found crucial differences due to the primarily residential nature of Twin Rivers, the HOA’s limited areas of operation (the local municipality provided schools, courts, fire, and police services), the limited public use of the subdivision, and the nature of the restrictions on the homeowners’ speech and the alternatives available. In short, while the HOA had to be reasonable, the court said the state constitution did not require unfettered speech or assembly and did not override the contractual agreements of the owners to abide by the deed restrictions.
The opinion noted that constitutional rights are not absolute -- and people may waive those rights by contract, or by just waiving them (by answering the officer’s questions after the Miranda warning).
We Americans have an odd attitude toward constitutional rights. Like our self-estimation of our driving skills, we love rights when they’re ours, but not so much when they’re somebody else’s. Nobody should have the right to tell me whether I can put a sign in front of my house -- that’s communism! But if a criminal conviction is reversed because the defendant’s rights were violated -- that’s liberal courts running amok!
At one point during the Twin Rivers litigation, the number of dissidents dwindled to three; these communities can be self-selecting, and the problem with being a minority in a voting situation is that the majority tends to win. This feels great when your side wins, but when it doesn’t, lots of dissidents start looking to the federal or state constitutions for reasons why the majority shouldn’t rule.
Why is it that government needs to protect people against the consequences of their decisions after purchasing a house with a HOA, but if fate strikes you with a severe illness, you’re on your own? That’s not my value system -- or according to the Twin Rivers court, not the federal or state constitution either.
Writing about homeowner associations in the Tribune is guaranteed fun, as libertarian philosophy clashes with libertarian philosophy. Apparently, government has no business getting involved with private contractual arrangements, unless we don't like the results, in which case government needs to get involved. It's the original darkling plain, and you know what Matthew Arnold said about armies that fight on darkling plains. As Margo Channing says, fasten your seatbelts, it's going to be a bumpy night.
I love the phrase "dissident homeowners." Only in America (and not just New Jersey, either).
Supremes vs. Sopranos: New Jersey Rules for the HOA
East Valley Tribune, Aug. 5, 2007
It’s homeowner association time again, the Tribune op-ed column version of a Disneyland E-ride; I await your angry emails. The reason is that while we don't know what happened to Tony Soprano, the New Jersey Supreme Court did decide the Twin Rivers case.
Twin Rivers is a master-planned community in East Windsor, N.J., with about 10,000 residents. The HOA maintained roads and street lights and managed landscape maintenance, leaf collection, snow removal, and common facilities open only to residents and guests. The HOA also distributed a community newsletter, and limited signs to only one in a window and one outside, if within 3 feet of the residence.
Dissident homeowners sued the HOA to allow unlimited signs on private property and on common areas subject to reasonable restrictions. They also sued for "equal access" to the community newsletter, and for an injunction stopping the HOA president from using the paper "as his own personal political trumpet."
The dissidents lost at trial, but in 2006, an appellate court reversed, holding that the HOA, by taking over many traditionally municipal functions, exercised enough power over residents to become subject to the state constitution’s free expression and assembly and equal protection protections. Committee for a Better Twin Rivers v. Twin Rivers Homeowner's Ass'n, 383 N.J. Super. 22, 890 A.2d 947 (App. Div. 2006). Everybody then appealed, and on July 25, the state Supreme Court reversed, holding that HOAs could impose "reasonable" restrictions on sign-posting and access to the community newsletter without violating the state constitution. Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Asso'n, 2007 WL 2127686 (N.J. July 26, 2007); slip opinion is here.
The opinion reviewed both federal and state constitutional law. The U.S. Supreme Court, in the 1980 Pruneyard case, held that the First Amendment didn’t give people free speech rights in a privately-owned shopping center. Malls, like HOAs, perform what used to be municipal functions and exercise significant control, but there’s no First Amendment right to picket, leaflet, request petition signatures, or give speeches in a privately-owned shopping center.
However, the New Jersey state constitution’s free speech and assembly protections are greater than those in the U.S. Constitution. (Arizona courts haven’t gone beyond the federal constitution, and here mall owners can limit speech and petition-gathering; that’s the Mecham Recall Committee case. The case citation, and a 2004 summary of state-by-state decisions, is available here.) In prior cases, the New Jersey court had allowed leafleting on a private college campus and a regional mall. But in applying those precedents, the court found crucial differences due to the primarily residential nature of Twin Rivers, the HOA’s limited areas of operation (the local municipality provided schools, courts, fire, and police services), the limited public use of the subdivision, and the nature of the restrictions on the homeowners’ speech and the alternatives available. In short, while the HOA had to be reasonable, the court said the state constitution did not require unfettered speech or assembly and did not override the contractual agreements of the owners to abide by the deed restrictions.
The opinion noted that constitutional rights are not absolute -- and people may waive those rights by contract, or by just waiving them (by answering the officer’s questions after the Miranda warning).
We Americans have an odd attitude toward constitutional rights. Like our self-estimation of our driving skills, we love rights when they’re ours, but not so much when they’re somebody else’s. Nobody should have the right to tell me whether I can put a sign in front of my house -- that’s communism! But if a criminal conviction is reversed because the defendant’s rights were violated -- that’s liberal courts running amok!
At one point during the Twin Rivers litigation, the number of dissidents dwindled to three; these communities can be self-selecting, and the problem with being a minority in a voting situation is that the majority tends to win. This feels great when your side wins, but when it doesn’t, lots of dissidents start looking to the federal or state constitutions for reasons why the majority shouldn’t rule.
Why is it that government needs to protect people against the consequences of their decisions after purchasing a house with a HOA, but if fate strikes you with a severe illness, you’re on your own? That’s not my value system -- or according to the Twin Rivers court, not the federal or state constitution either.
Subscribe to:
Posts (Atom)