Board of Directors, Fieldstone HOA PO Box 71 Greenfield, IN 46140 Re: Mr. & Mrs. Robert Willits 1621 Stonewall Drive Greenfield, IN 46140 Dear Board, By this letter, I request that you rescind and make amends for the actions taken in your letter to Mr. & Mrs. Robert Willits (“the Willits”) dated September 9, 2014 and reiterated in your letter to the Willits dated October 18, 2014. You may do so by Saturday, November 1, 2014. After that date, I will have no choice but to file suit to enjoin the board from enforcing the actions taken in its letters dated September 9 and October 18.1 If the suit is successful, state statute requires me to pursue further legal proceedings to collect costs from the board.2 This letter describes the prosecutor’s jurisdiction, the way in which the board has exceeded its authority, and the actions the board needs to take to rescind and make amends.
1 Indiana Code 34‐17‐2‐1(a)(1)(A). 2 Indiana Code 34‐17‐3‐6(c).
HANCOCK COUNTY PROSECUTING ATTORNEY 27 AMERICAN LEGION PLACE GREENFIELD, INDIANA 46140 MAIN TELEPHONE: (317) 477-1139 CHILD SUPPORT TELEPHONE: (317) 477-1713 FACSIMILE: (317) 477-1180
MICHAEL GRIFFIN PROSECUTING ATTORNEY
TAMI NAPIER CHIEF DEPUTY PROSECUTING ATTORNEY
NATALIE BENAVENTE CHILD SUPPORT ADMINISTRATOR
SHELLI POPPINO OFFICE MANAGER
Prosecutor’s Jurisdiction The prosecuting attorney is responsible to file suit against a corporation that “exceeds or abuses the authority conferred upon the corporation by law.”3 According to records of the Indiana Secretary of State, Fieldstone Homeowners’ Association, Inc. is a domestic corporation in good standing created on February 3, 1997. Association’s Authority According to the board’s letter dated October 18, the board takes the position that it has authority under the “time, place, or manner” provision of the Freedom to Display the American Flag Act of 2005 (the “Flag Act”).4 In relying on “time, place, or manner,” the board interprets its authority much too broadly. The “time, place, or manner” provision does not empower the association. Quite the opposite, the Flag Act prevents homeowners associations from enforcing most kinds of regulations regarding display of the American flag.5 But if the Association has a “substantial interest” invoked by a display of the American flag, then the association may use its state law authority to regulate the display with respect to “time, place, or manner.”6 The Community Associations Institute, in particular, calls attention to the requirement of a “substantial interest” on its web site.7 The association apparently assumes that it has a legally‐sufficient “substantial interest.” However, the association has asserted its interests to be type of community and future outdoor maintenance. Every homeowners association has those interests. If those general interests were enough, the law would not require a “substantial interest,” it would simply say that homeowners associations always have the right to regulate “time, place, or manner.” But the
3 Indiana Code 34‐17‐1‐1(6) and 34‐17‐2‐1. 4 Public Law 109‐243 (2006). 5 Section 3 of the Flag Act. 6 Section 4 of the Flag Act. 7 http://www.caionline.org/govt/news/P...ththeFreedomto DisplaytheAmericanFlagActof2005.aspx (last visited on October 23, 2014).
law does not say that. The law requires a “substantial interest,” something more than the usual interests of homeowners associations. The example offered by the Community Associations Institute is large floodlights that would disturb the sleep of residents.8 However, nothing like that is at stake here. After visiting the Willits’ property and examining their display, we find that: the flags are in good condition and are of a size and material commonly found in Hancock County and throughout Indiana, and the type of flagpole, including its height, color, finish, finial, and surrounding decorations, are all within the bounds of flag displays commonly found in Hancock County and throughout Indiana. We do not find any aspect of the Willits’ display that invokes a legally‐sufficient “substantial interest” of the association. Our visit also revealed that a much taller flagpole and flag are posted on association property near the entrance to the Fieldstone neighborhood. With these already displayed in the Fieldstone neighborhood, the association cannot deny that these are acceptable. Any legal dispute about the Willits’ display would invoke the association’s display as a powerful example supporting the Willits. In summary, the association does not have a legally‐sufficient “substantial interest” invoked by the Willits’ display. Under the Flag Act, without a “substantial interest,” the association cannot regulate the Willits’ flagpole and American flag. Potential Responses I expect the board’s review will include consideration of counterpoints to the position taken in this letter. In the interests of time and resolving this matter, I will note and address the more expected counterpoints.
8 Id.
One counterpoint may be that the Willits failed to follow procedures. This is easily overcome. Under the Flag Act, exercising the right to display the American flag does not require following any procedure unless the association has a legally‐sufficient “substantial interest.” As already concluded, the association does not have a legally‐sufficient “substantial interest” with respect to the Willits’ flag display. Without a “substantial interest” at stake, the Flag Act allows the Willits to exercise their right without following any procedure at all. Another counterpoint may be that the association has to assert its authority now, otherwise, the association will not be able to enforce its covenants and restrictions in the future. But that attempts to pit the full range of future possibilities against the actual display today by the Willits. This dispute is not about possibilities. The Flag Act does not permit future possibilities to be an objection. This dispute concerns the actual flag display, now, by the Willits. In the future, if the Willits display a tattered flag, double the height of their flagpole, paint the flagpole bright pink, or do anything else that would render the display disrespectful,9 the association could take enforcement action consistent with the “manner” provision of the Flag Act. But that is not today’s situation. Today’s situation is a well‐maintained and respectful display of the American flag consistent with the Flag Act and Code. Another counterpoint may be that the prosecuting attorney enforces state law, not federal law. However, this is an enforcement of state law. The association has no authority apart from state law. The association’s authority to enforce covenants and restrictions is derived from state law. The association is attempting to use its authority under state law. The state authority of homeowners associations has been reduced by a federal law, the Flag Act. Regardless, the association continues to attempt using its state law authority as though it had not been reduced. State law makes me responsible to file suit against a corporation when it “exceeds or abuses the authority conferred upon the corporation by law.”10 Note that the reference to “law” in that provision is not limited. My position is that the association does not have the state law authority that it has asserted, and that the association has exceeded its state law authority.
9 See The Flag Code, 4 U.S.C. §§ 1‐10. 10 Indiana Code 34‐17‐1‐1(6) and 34‐17‐2‐1.
Another counterpoint may be that the association’s free‐standing flagpole is intended to be the only one in the neighborhood. However, display is an individual right under the Flag Act, not limited to a group like the association. If display by free‐standing flagpole is already acceptable at one location in the neighborhood, logic does not dictate that it is unacceptable elsewhere in the neighborhood. What about restrictions on “manner” or “place” of display? As already addressed, those apply only if the association has a legally‐sufficient “substantial interest.” What “substantial interest” could the association have in prohibiting the Willits’ free‐standing flagpole? If the answer is aesthetics or exclusive use by the association, those are not legally‐sufficient “substantial interests.” Why not? This is exactly why the Flag Act became law. After the Flag Act, the usual, aesthetic‐based interests of a homeowners association are simply not enough when it comes to display of the American flag. That’s what the Flag Act means, and that’s why the “substantial interest” standard was imposed. Another counterpoint may be that only the American flag is covered by the Flag Act while the flagpole is not covered by the Flag Act. However, an interpretation like that would be totally inconsistent with the Flag Act. To display the flag, some means of display is necessary. There is no possible way for a flag to be displayed without it being attached to something. Flagpoles, whether free‐ standing or attached to the façade of a home, are the customary way of displaying a flag outdoors. Aesthetic preference is not a legally‐sufficient “substantial interest” of the association with respect to American flag display, and I know of no other reason for an association to distinguish between flagpoles attached to the façade of a home and free‐standing flagpoles. Another counterpoint may be that the Willits are also flying a POW/MIA flag. The POW/MIA flag is not protected by the Flag Act. In your letter dated October 18, 2014, you take exception, to what you imagine to be an implication of Mr. Cone’s letter, that you are not decent‐minded people. As I read Mr. Cone’s letter, I did not find that as an implication. I found Mr. Cone’s letter to be a positive, reasonable and succinct appeal to your better sentiments. Obviously, that was not successful. I suggest that you permit the Willits to fly their POW/MIA flag as a gesture of goodwill. However, the decision about the POW/MIA flag, and the implications that will inevitably flow from it, are yours to choose. We are free to act legally, but we are not free from what people will
1 Indiana Code 34‐17‐2‐1(a)(1)(A). 2 Indiana Code 34‐17‐3‐6(c).
HANCOCK COUNTY PROSECUTING ATTORNEY 27 AMERICAN LEGION PLACE GREENFIELD, INDIANA 46140 MAIN TELEPHONE: (317) 477-1139 CHILD SUPPORT TELEPHONE: (317) 477-1713 FACSIMILE: (317) 477-1180
MICHAEL GRIFFIN PROSECUTING ATTORNEY
TAMI NAPIER CHIEF DEPUTY PROSECUTING ATTORNEY
NATALIE BENAVENTE CHILD SUPPORT ADMINISTRATOR
SHELLI POPPINO OFFICE MANAGER
Prosecutor’s Jurisdiction The prosecuting attorney is responsible to file suit against a corporation that “exceeds or abuses the authority conferred upon the corporation by law.”3 According to records of the Indiana Secretary of State, Fieldstone Homeowners’ Association, Inc. is a domestic corporation in good standing created on February 3, 1997. Association’s Authority According to the board’s letter dated October 18, the board takes the position that it has authority under the “time, place, or manner” provision of the Freedom to Display the American Flag Act of 2005 (the “Flag Act”).4 In relying on “time, place, or manner,” the board interprets its authority much too broadly. The “time, place, or manner” provision does not empower the association. Quite the opposite, the Flag Act prevents homeowners associations from enforcing most kinds of regulations regarding display of the American flag.5 But if the Association has a “substantial interest” invoked by a display of the American flag, then the association may use its state law authority to regulate the display with respect to “time, place, or manner.”6 The Community Associations Institute, in particular, calls attention to the requirement of a “substantial interest” on its web site.7 The association apparently assumes that it has a legally‐sufficient “substantial interest.” However, the association has asserted its interests to be type of community and future outdoor maintenance. Every homeowners association has those interests. If those general interests were enough, the law would not require a “substantial interest,” it would simply say that homeowners associations always have the right to regulate “time, place, or manner.” But the
3 Indiana Code 34‐17‐1‐1(6) and 34‐17‐2‐1. 4 Public Law 109‐243 (2006). 5 Section 3 of the Flag Act. 6 Section 4 of the Flag Act. 7 http://www.caionline.org/govt/news/P...ththeFreedomto DisplaytheAmericanFlagActof2005.aspx (last visited on October 23, 2014).
law does not say that. The law requires a “substantial interest,” something more than the usual interests of homeowners associations. The example offered by the Community Associations Institute is large floodlights that would disturb the sleep of residents.8 However, nothing like that is at stake here. After visiting the Willits’ property and examining their display, we find that: the flags are in good condition and are of a size and material commonly found in Hancock County and throughout Indiana, and the type of flagpole, including its height, color, finish, finial, and surrounding decorations, are all within the bounds of flag displays commonly found in Hancock County and throughout Indiana. We do not find any aspect of the Willits’ display that invokes a legally‐sufficient “substantial interest” of the association. Our visit also revealed that a much taller flagpole and flag are posted on association property near the entrance to the Fieldstone neighborhood. With these already displayed in the Fieldstone neighborhood, the association cannot deny that these are acceptable. Any legal dispute about the Willits’ display would invoke the association’s display as a powerful example supporting the Willits. In summary, the association does not have a legally‐sufficient “substantial interest” invoked by the Willits’ display. Under the Flag Act, without a “substantial interest,” the association cannot regulate the Willits’ flagpole and American flag. Potential Responses I expect the board’s review will include consideration of counterpoints to the position taken in this letter. In the interests of time and resolving this matter, I will note and address the more expected counterpoints.
8 Id.
One counterpoint may be that the Willits failed to follow procedures. This is easily overcome. Under the Flag Act, exercising the right to display the American flag does not require following any procedure unless the association has a legally‐sufficient “substantial interest.” As already concluded, the association does not have a legally‐sufficient “substantial interest” with respect to the Willits’ flag display. Without a “substantial interest” at stake, the Flag Act allows the Willits to exercise their right without following any procedure at all. Another counterpoint may be that the association has to assert its authority now, otherwise, the association will not be able to enforce its covenants and restrictions in the future. But that attempts to pit the full range of future possibilities against the actual display today by the Willits. This dispute is not about possibilities. The Flag Act does not permit future possibilities to be an objection. This dispute concerns the actual flag display, now, by the Willits. In the future, if the Willits display a tattered flag, double the height of their flagpole, paint the flagpole bright pink, or do anything else that would render the display disrespectful,9 the association could take enforcement action consistent with the “manner” provision of the Flag Act. But that is not today’s situation. Today’s situation is a well‐maintained and respectful display of the American flag consistent with the Flag Act and Code. Another counterpoint may be that the prosecuting attorney enforces state law, not federal law. However, this is an enforcement of state law. The association has no authority apart from state law. The association’s authority to enforce covenants and restrictions is derived from state law. The association is attempting to use its authority under state law. The state authority of homeowners associations has been reduced by a federal law, the Flag Act. Regardless, the association continues to attempt using its state law authority as though it had not been reduced. State law makes me responsible to file suit against a corporation when it “exceeds or abuses the authority conferred upon the corporation by law.”10 Note that the reference to “law” in that provision is not limited. My position is that the association does not have the state law authority that it has asserted, and that the association has exceeded its state law authority.
9 See The Flag Code, 4 U.S.C. §§ 1‐10. 10 Indiana Code 34‐17‐1‐1(6) and 34‐17‐2‐1.
Another counterpoint may be that the association’s free‐standing flagpole is intended to be the only one in the neighborhood. However, display is an individual right under the Flag Act, not limited to a group like the association. If display by free‐standing flagpole is already acceptable at one location in the neighborhood, logic does not dictate that it is unacceptable elsewhere in the neighborhood. What about restrictions on “manner” or “place” of display? As already addressed, those apply only if the association has a legally‐sufficient “substantial interest.” What “substantial interest” could the association have in prohibiting the Willits’ free‐standing flagpole? If the answer is aesthetics or exclusive use by the association, those are not legally‐sufficient “substantial interests.” Why not? This is exactly why the Flag Act became law. After the Flag Act, the usual, aesthetic‐based interests of a homeowners association are simply not enough when it comes to display of the American flag. That’s what the Flag Act means, and that’s why the “substantial interest” standard was imposed. Another counterpoint may be that only the American flag is covered by the Flag Act while the flagpole is not covered by the Flag Act. However, an interpretation like that would be totally inconsistent with the Flag Act. To display the flag, some means of display is necessary. There is no possible way for a flag to be displayed without it being attached to something. Flagpoles, whether free‐ standing or attached to the façade of a home, are the customary way of displaying a flag outdoors. Aesthetic preference is not a legally‐sufficient “substantial interest” of the association with respect to American flag display, and I know of no other reason for an association to distinguish between flagpoles attached to the façade of a home and free‐standing flagpoles. Another counterpoint may be that the Willits are also flying a POW/MIA flag. The POW/MIA flag is not protected by the Flag Act. In your letter dated October 18, 2014, you take exception, to what you imagine to be an implication of Mr. Cone’s letter, that you are not decent‐minded people. As I read Mr. Cone’s letter, I did not find that as an implication. I found Mr. Cone’s letter to be a positive, reasonable and succinct appeal to your better sentiments. Obviously, that was not successful. I suggest that you permit the Willits to fly their POW/MIA flag as a gesture of goodwill. However, the decision about the POW/MIA flag, and the implications that will inevitably flow from it, are yours to choose. We are free to act legally, but we are not free from what people will
