Should an accused violator be allowed to confront the witness?

Daniel:
Is your question that the law as written is wrong or part of the law?

The subject asks: Should an accused violator be allowed to confront the witness.

You can ask is the witness required to subject himself to cross examination by the accused. The law seems to say yes but I doubt the HOA has the authority to require the witness attend any of these meetings or whatever. Maybe be could make a voluntary written statement but it seems to me that is stretching a bit far also. If there was criminal conduct involved the police would handle it of course.

I really think there is no resolution here on this site. It is a state ruling, maybe subject to interpretation but not subject to change by a discussion group.

Just my opinion of course.

My question is: In the opinion of the people in this forum, SHOULD the legal system give the accused these rights?

We've already debated elsewhere that the legal system DOES give the accused these rights.

But, in your opinion, do you agree or disagree that the accused should have these rights?

It is not Bob's duty to prove that John is not picking up his dog's poop. I do not believe that the HOA should involve Bob. It is up to the Board to find evidence against John, not Bob. The HOA is not a court of law, it's where we live, supposidly in harmony

If the HOA wants to prove a case against John, then it is up to them to ontain PROOF!! Bob can take a picture or tape John but Bob should not have to face him. And I say it again, this is not a court where you point your finger at someone.

Should an accused violator be allowed to confront the witness? IMO absolutely not.
But the violator has the right to challenge and try to prove that they did not violate a reasonable restriction. The Board has the responsibility to hear both sides when there is a Hearing.

We investigate and document al homeowner complaints and are therefore the witness who provides testimony and evidence to substantiate a violation. Using this procedure a neighbor does not have to be confronted or nor are they identified as the one who initially complained.

How would a Board get proof on its own?

With something like dog poop, it is ridiculous to expect that anybody, even the Board, would have the resources to shadow John and ultimately catch his dog on video.

And, even if they did, John can easily explain: "Well, I went home right then, got a pooper scooper, came back and picked the dog poop up!" I doubt anybody would present a video with time-lapse photography to prove that the dog poop stayed there. The Board could go out and look for dog poop but it'd be hard to prove if it was Bob's dog or not. But I suppose that you could pay for a laboratory to match up dogs with poop.

The dog poop example is chosen specifically because it requires a witness. Proof, without a witness, is absurd.

The legal cases of Applebaum and Cason provide some support to say that associations like HOAs are bound by the same "rules" as governments (e.g. individuals have rights), even in civil contracts.

Nope, Nope and Nope.

My HOA used several methods of filing a complaint. We had a form on the website, form letters in the office and a box outside of the bulleten board. Any complaint without a contact number was disregarded and it stated so in bold letters on the forms.

All complaints were kept anonomous. The P.M. also had a recorded message that accepted phone complaints but also required a name or contact number. This prevented alot of bogus and he said, she said complaints. People have to accept responsibility for all of their actions so if you cannot identify yourselves, then the complaint was not considered. (but we did follow up on anything that did seem to be valid or serious)

No they shouldn't. There is nothing that happens within an HOA that should require an anonymous complaint. At the same time, the HOA should reply to the complainer what they found:

Complaint is not valid because rule xyz was not violated
Complaint is valid and the HOA will investigate

Tim

So then if the complaint is not anonymous, can't the accused review the records and see who complained?

I still disagree with this policy. It is the HOA rules/ documents that are being violated and it is the Board representing the HOA that must handle the violation and they bear the burdeon of proof, not an accuser. Having a member go before a violator is an open invitation for neighbor to go against neighbor. IF a report of some violation would escallate beyond the Board not being able to get resolution with the violation with a one on one meeting, then perhaps they can further pursue it with the accuser but I am still standing against the acuser being involved face to face with the violator.

Bravo Roger,

That is what I have been trying to say in my primative way. Thanks

Brian,

In the first paragraph of your response to my post on 03/26/2010, you wrote: "Due Process is not the same thing as a guaranteed right to face an accuser."

I have NOT asserted that due process IS "the same thing as a guaranteed right to face an accuser." The right to face an accuser is only ONE of the FOUR elements of due process.

Daniel began this thread with a reference to a passage at the Website of the Adams Kessler law firm. Adams Kessler's specialty is California HOA law. One of the firm's associates was, in fact, a co-author of the largest body of California HOA law--the Davis-Stirling Act.

At the Adams Kessler Website, the key passage on due process reads as follows: “The elements of due process include: (i) giving the accused notice of the alleged violation; (ii) providing a reasonable opportunity for the person to defend themselves; (iii) knowing the identity of the accuser with an opportunity to cross-examine the witness; and (iv) giving the accused an opportunity to examine and refute the evidence. Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; Carson [sic] v. Glass Bottle Blowers (1951) 37 Cal.2d 134, 144; Civil Code §1363(h); Civil Code §1363.05(b); Corp. Code §7341(c)(3).” Please take special note of the third element in this Adams Kessler listing of the elements of due process: "(iii) knowing the identity of the accuser with an opportunity to cross-examine the witness."

In your third paragraph, you wrote: "An HOA is not a recognized branch of the US government." I nowhere said that it is. HOAs are quasi-governments that function primarily under state laws--California laws in your and my case.

I'll try to clarify the California HOA governance context for you. California law consists of 29 bodies of codes. You can find links to all 29 bodies of code at http://www.leginfo.ca.gov/calaw.html. Most of the state laws relevant to HOAs are to be found in the body of code titled "Corporations Code" and the body of code titled "Civil Code."

Most California HOAs are nonprofit corporations. If you use the link on http://www.leginfo.ca.gov/calaw.html named "Corporations Code," you'll be taken to a page headed: "CALIFORNIA CORPORATIONS CODE." Scrolling down the page, you'll find a list of links headed "PART 3. NONPROFIT MUTUAL BENEFIT CORPORATIONS." The links in this list lead to part of the California code under which most California HOAs operate.

If you use the link on http://www.leginfo.ca.gov/calaw.html named "Civil Code," you'll be taken to a page headed: "CALIFORNIA CIVIL CODE." Scrolling down the page, you'll find a list of links headed "TITLE 6. COMMON INTEREST DEVELOPMENTS." The links in this list lead to another part of the California code under which most California HOAs operate.

Please note that under the heading "TITLE 6. COMMON INTEREST DEVELOPMENTS," Chapter 2 is titled "GOVERNING DOCUMENTS." This chapter is concerned with the creation and enforcement of CC&Rs and the creation and enforcement of association operating rules. Also, please note that under the heading "TITLE 6. COMMON INTEREST DEVELOPMENTS," Chapter 4 is titled "GOVERNANCE." This chapter is concerned with elections, managers, and dispute resolution procedures.

If you read the above-referenced sections of code carefully, you'll understand why California HOAs are often classified as quasi-governments, and you'll see that the violations-hearings-fines procedures of California associations parallel those of California court procedures.

In your fourth paragraph, you wrote: "I do not believe there is a Constitutional law that requires any two civil parties, with no governmental interaction at all, to provide 'right to face accuser'." Three of the phrases ("Constitutional law," "civil parties," and "governmental interaction") in this sentence are so vague and ambiguous that I am unable to understand the sentence as a whole. I therefore am unable to venture a response to your asserted belief.

George, We would first send the owner who does not clean up after their dog a Courtesy Notice advising of the restriction that they violated. If done a second time a Violation Notice is sent. It is not appropriate to fine based on heresay so it may require eye witness testimony for issuing a dog poop violation fine IF the owner requests a Hearing. The same problem exists for a barking dog or loud music late at night. Not all problems can be proven but they can be documented by written notice. After several notices the evidence becomes convincing when not challenged.

George, If I was a member of the Hearing committee I would allow testimony and evidence from both sides and make an informed decision. Unless there was convincing evidence and/or testimony presented of a violation I would not vote to levy a fine. But I may be in favor of giving the alledged violator a warning.