A court is allowing a constitutional lawsuit to go ahead against the Arizona Association of Realtors (AAR) by a realtor whom the AAR disciplined for posting conservative memes on social media. This is the first time in the state’s history that a constitutional claim has been allowed against a private organization, according to Ryan Heath, realtor Chad DeVries’ attorney.
Heath wrote on his Substack, “Because the court has permitted his due process claims to proceed, DeVries has now successfully advanced a novel legal theory: that AAR’s control over access to the real estate profession makes it subject to constitutional due process requirements, even though it is a private entity.”
One of the memes DeVries posted on his personal anonymous Instagram account showed a pregnant woman and a doctor. The mother asked, “Is it a boy or a girl?” The doctor responded, “We’ll let the kindergarten teacher decide.”
AAR said he violated an anti-discrimination rule. Article 10 of Standard of Practice 10-5 and Professional Standards Policy 29 prohibit realtors from discriminating “in their real estate employment practices … on the basis of race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity.”
Heath said the AAR “levied disciplinary sanctions against him in an attempt to silence and punish him, including mandatory continuing education, fines, and a possible suspension and expulsion of his REALTOR® membership.”
Yavapai County Superior Court Judge Tina Ainley, who was appointed to the bench by a Democrat, stated in her opinion allowing the case to go forward, “Plaintiff has presented threshold evidence that membership in Defendant’s organization is an economic necessity in addition to the fact that Defendant acted arbitrarily. If true, the facts alleged are sufficient to satisfy the requirements for establishing a due process claim against a private organization.”
Ainley reviewed the arguments DeVries presented in his complaint. Ainley seemed to agree with DeVries that since the AAR holds a monopoly over who can access the Multiple Listing Service (MLS), he cannot engage in his profession. She cited Blende v. Maricopa County Medical Society, stating, “Plaintiff relies on Blende for the proposition that a private organization may trigger governmental due process requirements if the organization acts arbitrarily and if membership in the organization is an economic necessity.”
In Blende, the plaintiff doctor was denied membership in the Maricopa County Medical Society, which stopped him from working in his profession, since “the maintenance of staff privileges in the hospitals of Maricopa County depends upon membership in the Society,” the Arizona Supreme Court in that case said. “The interests in freedom of association and in autonomy for private associations make it desirable to allow private groups to determine their own membership. But when a medical society controls a doctor’s access to hospital facilities, then the society’s exercise of a quasi-governmental power is the legitimate object of judicial concern.”
Heath said, “As you can see from the few examples provided below, none of the memes concerned his ‘professional services’ or ‘employment practices’ — which are factual conditions that must exist before any REALTOR® can be disciplined under Article 10 of the Code of Ethics.”
DeVries also sued several realtors, who are his competitors in Yavapai County, for bringing the complaints against him.
Two other real estate attorneys around the country are also filing lawsuits against real estate boards. Virginia realtor and broker Wilson Fauber was found guilty by both the National Association of Realtors and the Virginia Association of Realtors of “hate speech” for posting a Bible verse with commentary 10 years ago on his personal Facebook page. Fauber, an ordained Christian minister, was ordered to take classes as a form of discipline.
Georgia realtor Julie Mauck protested a “sexually explicit” book, “Flamer,” at her local library, which was scheduled to be placed in the children’s section in July 2023. She was found guilty in the first ethics hearing, but appealed and won. She filed a lawsuit earlier this year.
Minnesota-based realtor Matt Moore dropped his real estate license due to opposition to his speaking out about LGBTQ+ issues. “My current broker will not allow me to continue working under her … if I continue to speak publicly about LGBTQ+ issues,” he told Faithwire.
While there has been considerable attention on attorneys who are disciplined by state bars for their conservative viewpoints or representation, the targeting of conservatives is expanding to other professions where membership is mandatory or nearly mandatory.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Chad DeVries” by Chad DeVries.
