Lawyer’s editing raises free speech issue
Question: Along with other homeowners, I’ve been trying to run for a position on our association’s board for several years. We are consistently unsuccessful because the board’s attorney limits all communication among homeowners, including nomination fliers, to a “200-word statement.” The attorney then heavily edits each statement down to one or two sentences.
If the board or attorney doesn’t like or agree with a homeowner’s statement, it is returned stamped “denied.” The attorney says he must do this to “prevent liability on behalf of the association.”
When we ask for a membership name and address list, the attorney sends a letter stating, “Under Corporations Code section 8330(c) the association has the right to protect the privacy and security concerns of the association’s membership list.... If you want to send a letter to the membership you must submit it in stamped, sealed envelopes ready for mailing. Once the envelopes have been submitted to the management office, mailing labels will be attached and the envelopes will be placed in the mail no later than two business days after receipt by the association. Advise the management company in advance so they can purchase mailing labels.”
The attorney said that the homeowner has to pay for labels.
Year after year, nothing changes, not even the board. How can I break through this exercise in futility?
Answer: In 1933 the U.S. Supreme Court ruled that requiring a statement to be submitted for review before it could be published is “prior restraint” on speech and is unconstitutional. The association’s attorney runs afoul of this 70-year-old decision.
Your desire to communicate with other homeowners regarding the operation of your association is understandable. No barriers should prevent that from happening.
Corporations Code section 8330(c) provides that the association may provide “a reasonable alternative” to a request for a membership list. A determination of what is “reasonable” requires a hearing before your county’s Superior Court, and that requires the plaintiff-titleholder to front enough money to sustain the cost of filings and the duration of a lawsuit.
Plaintiffs are quickly burdened financially, whereas the association board’s defense is paid for by insurance, a fact not lost on association attorneys. An attorney employed by the board represents the association, not the homeowner.
A letter is not valid just because an attorney writes it. There are several problems with the letter you noted. The demands may violate your association’s covenants, conditions and restrictions. Without a vote of homeowners authorizing those particular instructions, they could be outside his purview to act or to demand you act.
The instructions may also constitute a quasi-amendment to your association’s documents. His letter does not automatically establish the existence of an amendment that a board can order you to obey. No change to governing documents is effective without following the letter of the law and procedures set forth in those documents.
Unless each envelope is sent with return receipt requested, proving and tracking the mailing will be difficult. Even though they are to be pre-stamped and sealed, there are no written assurances that the association will not open them and insert other material or that the association will mail them all in a timely way.
Should the association fail to promptly mail the letters as stated in the “alternative,” that alone is sufficient grounds for determining that the alternative is unreasonable.
Stephen Glassman and Donie Vanitzian are the authors of “Villa Appalling! Destroying the Myth of Affordable Community Living” (Villa Appalling Publishing Inc., 2002). Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to NoExit@mindspring.com.
