By Deborah Goonan, Independent American Communities
This past week, the controversial confirmation of Judge Brett Kavanaugh as Supreme Court Justice had the effect of raising America’s awareness of the importance of due process to the U.S. Justice System. Likewise, it has shined the light upon the principles of our Constitutional Republic.
Due process is a distinctly American concept that begins with the premise that an individual is presumed innocent until proven guilty. Effective due process is meant to give the accused a fair chance at protecting his or her good reputation and/or defending alleged actions or inactions. The burden of proof lies with the accuser, who must prove, with evidence, that the accused is indeed guilty of some civil offense or criminal behavior.
But somehow, in the highly politicized environment in the U.S., a significant number of American residents would turn due process on its head, by assuming Kavanaugh’s guilt and expecting the Judge and his supporters to prove his innocence.
And although a Supreme Court confirmation is not a trial, the spectacle observed around the world this week certainly felt like a kangaroo court divided along party lines.
Christine Blasey Ford’s supporters maintained the need for further investigation of her claims against Kavanaugh, despite the severe lack of corroborating evidence. The message from those who opposed Kavanaugh’s confirmation was that Blasey Ford was deserving of unwavering sympathy and support, while the Judge was deserving of nothing less than contempt. They argue that Blasey Ford wasn’t given enough time and consideration, that the Senate and the FBI could have interviewed other potentially corroborating witnesses.
But, if the accusations against Kavanaugh had not been withheld until the 11th hour of the confirmation process, if the Judge had been confronted early in the process with allegations of a 35-year-old attempted sexual assault, Senators and the FBI would have had more time to investigate, and to ask questions. It’s unknown whether additional investigation would have uncovered clear evidence in support of Blasey Ford’s allegations, or Judge Kavanaugh’s innocence.
No matter who you believe, and no matter what your political beliefs, you may be left with the impression that due process was sorely lacking in the process of Senate Confirmation of Justice Brett Kavanaugh.
But, remember: a Senate confirmation hearing is not a trial. There is no presiding Judge, no jury of peers. The process was never meant to be a Judicial proceeding.
When did it become OK to disrupt the Senate’s Supreme Court confirmation process with what amounts to a trial by public opinion?
How did the U.S. federal government get to the point where elected Senators would become players in a game of political chess, where some would stoop so low as to condemn a man in the absence of clear evidence, and where some Senators would verbally attack their colleagues for not sharing their world views and values?
The most regrettable part about the Senate confirmation process is that Judge Kavanaugh never faced challenging questions about his previous judicial record. Instead, his confirmation became more about overcoming what slightly more than half of the Senate viewed as false accusations and character assassination.
And now that Kavanaugh is a Justice of the Supreme Court, political division among Americans appears to be deeper and more vicious than ever. The current public hysteria is unbecoming, even frightening.
Perhaps it’s time for some serious soul searching. Do most Americans still value individual rights, and believe in the U.S. Constitution?
Parallels to association-governed communities in the U.S.
It’s sad to say that America’s association-governed communities operate under the same dysfunctional and divisive politics — with the exception of occurring at the local level rather than the national level.
As previously addressed here on IAC, let’s take a closer look at due process in the context of your homeowners, condominium, or housing cooperative association.
For all practical purposes, is due process adequate in your association-governed community?
One of the biggest myths promoted by the association-governed housing industry is that homeowners have access to due process when faced with violation notices, assessment collections, or disputes over the validity of alleged breaches of contract.
Community Associations Institute (CAI) claims that due process is satisfied by giving a homeowner the opportunity to be heard by the HOA board, or a board-selected (hand-picked) violations committee. In their publication outlining Best Practices, Report #2, Governance, CAI provides a list of minimum standards to ensure quality governance of associations. With regard to due process, here is their recommendation: (see page 5)
The board provides for due process (the opportunity to be heard) for owners in association-related matters and the board encourages the use of alternative dispute resolution in appropriate matters.
Did you catch that? According to CAI, due process is merely an “opportunity to be heard,” and “encourages alternative dispute resolution” (ADR).
But due process, as understood in the context of the U.S. Constitution and centuries of law going back to 16th Century England, is intended to offer greater protections for the accused, ensuring a fair hearing of the issues before a disinterested third party, and, preferably, a jury of one’s peers.
REFERENCE: LegalDictionary.net definitions of due process
Substantive Due Process
Substantive Due Process pertains to those rights not listed specifically in the U.S. Constitution, but which are recognized as an important part of an individual’s liberty. Substantive due process is often related to areas such as voting, minorities, and the rights of children. When determining whether the government has violated a person’s substantive due process rights, the judicial system first determines whether the issue at hand was a fundamental right.
Procedural Due Process
Procedural due process protects individuals during governmental proceedings, whether they are civil or criminal. Procedural due process also pertains to parole hearings, governmental benefit hearings, and full criminal trials. The rights afforded in this section include, but are not limited to:
The right to an unbiased trial
The right to be given notice of the proposed trial and the reason for it
The right of the individual to be aware of evidence against him
The right to cross-examine witnesses for the opposition
The right to present evidence and call witnesses
The right to be represented by counsel
Prohibition Against Vague Laws
The Due Process Clause protects citizens against laws that are too vague for the average person to understand. If the laws are written in such a manner that an ordinary person cannot determine whether the conduct is expressly prohibited, or that a punishment can be rendered if they carry out the conduct, the court can determine the law to be “void for vagueness.” This prohibition against vague laws ensures that the laws are understandable and that ignorance cannot be used as a defense in criminal offenses.
Incorporating Protections into the Bill of Rights
The Bill of Rights was originally intended to apply only to the federal government, but the ratification of the Fourteenth Amendment placed prohibitions on the actions of individual states as well. As time went on, the Supreme Court made a number of rulings that certain state laws or policies violated protections guaranteed by the Bill of Rights, thus “incorporating” those protections, applying them to all U.S. citizens.
Let’s take a closer look at each aspect of due process, one by one
Substantive due process is commonly not met in association governed communities with regard to basic rights, such as the right to vote in association elections and on official association issues.
In nearly all mandatory membership association-governed communities, voting interests are not rights, per se. Each unit or parcel is allocated its respective share of voting interests as a percentage of the entire association. The votes a member is entitled to cast are determined by the amount of property that member owns.
Units and parcels owned by the developer are often subject to weighted voting interests, for instance, 3, 5, 7, or more votes per unsold unit or parcel. And during Declarant (developer) control, there are generally no HOA board elections, as the board is appointed by the developer.
The person who resides in an association-governed community has no inherent right to vote. Tenants and non-owners are rarely permitted to vote. The concept of one person, one vote does not apply in association-governed communities. The vote is corporate in nature, not Constitutional.
Because of this substantive difference in rights, owners are at a decided disadvantage when it comes to exercising their “right to vet and choose the board.”
Procedural due process is virtually nonexistent in association-governed communities. The association provides no opportunity for a trial, either by way of a hearing conducted by a board-appointed committee or by way of ADR.
Like a Senate confirmation hearing, an HOA hearing is not a judicial process. It’s merely a committee of local leaders basing their judgments on limited evidence, but ample — and often biased — personal opinion.
And ADR is, in fact, an internal process that is meant to avoid a trial! When the parties to a dispute have unequal rights and status — as is the case with HOA disputes — the weaker party is at a distinct disadvantage due to the lack of a structured procedure to ensure due process.
Can anyone convincingly argue that the HOA hearing is a suitable substitute for a trial, or even the equivalent of small claims or Magistrate court?
Consider that, using HOA internal hearings and dispute resolution, the following due process requirements are not met:
- There is little assurance that the decision makers at the HOA hearing are unbiased.
- The owner may receive little or no advance notice of the hearing, and no opportunity to schedule a mutually convenient time and place.
- The HOA may not provide ample evidence of the alleged violation or assessment delinquency. In most cases, the HOA is not legally obliged to do so.
- The owner usually has no right to cross-examine witnesses that allege a violation. In almost all cases, the HOA takes a complaint from another owner or resident, and often protects the anonymity of the person who filed the complaint.
- The owner has no right to call witnesses as part of defense.
The owner probably does have the right to be represented by counsel, but usually only with advance notice to the board.
As for ADR, depending upon the rules of engagement, an association member’s right to confront and present evidence and witnesses will also be limited. But the most serious obstacle to due process in ADR is whether or not the homeowner has access to a fair and impartial mediator or arbitrator. A second obstacle is that the mediator or arbitrator is not bound by rule of law or legal precedent. A third obstacle is that there is often no right to appeal a decision, and if binding Arbitration is chosen, no right to go to trial on the same issues.
Restrictive Covenants and governing documents in association-governed communities are notorious for the number of vague laws contained within. Board enacted rules are even more likely to be vague, and therefore misinterpreted by homeowners. Yet, within the typical HOA hearing process, there is often no protection for association members against these vague provisions. Selective enforcement of rules is a common complaint in HOAs, and some owners spend years in litigation with their HOA fighting these battles.
And, because association-governed communities are private organizations (usually corporations), there is no inherent guarantee of that the Bill of Rights of the U.S. Constitution is incorporated into a homeowners, condominium, or cooperative association.
The good news
An Illinois Appellate Court has ruled that owners and residents are, in fact, entitled to First Amendment and due process rights, but first the association member must spend a fortune in legal fees either asserting or defending those rights.
For readers interested in further reading, here are some additional due process references:
References about ADR:
Traditional Litigation versus Alternative Dispute Resolution (in collection cases)
Arbitration Pros and Cons
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