In rebuttal to Mr. Dranias’ defense of his position on private HOA governments (see Goldwater Institute: regulating HOAs “stands Constitution on its head”, I am quite flattered that he mistakenly ascribes the argument of secessionist HOAs to me rather than to its originator, Robert A. Nelson, as indicated in my Commentary.
In his reply, he makes a fine distinction in reference to a government based on the use of a police force — a guess he means the right to lockup people — by municipalities and not by HOAs, which “justifies tailoring the principles found in the Bill of Rights to more tightly constrain the vast regulatory powers of local governments, rather than HOAs.” And that tailoring apparently is, based on prior statements, “no contract interference.” Mr. Dranias goes much too far in taking such a narrow view of what the Bill of Rights and Constitution are all about — and it ain’t merely contract interference.
As to his reference to “Staropoli’s mantra that an HOA is a private ‘government’ does not make it so” is quite correct, and neither does The Goldwater Institute’s lofty pronouncements. Let’s debate the private government issue and related issue that HOAs are state actors. Let’s not be surprised at the extent of contrary political and legal thought supporting the position that HOAs can be found to be state actors and be bound by the Bill of Right as any other government entity. The published US Supreme Court criteria for state actors, not having been tested in court, include: a close nexus; symbiotic relationship; intertwinement with the operations of the entity; cooperation, support or coercion. An examination by a lay person can easily see such grounds based on a review of state laws.
Let’s bring this important matter to the attention of a national organization that will sponsor such a discussion or conference and who will invite all parties to the table — and and means including pro-homeowner authorities and not this average Joe, and excluding all those property law attorneys who have not recognize arguments that HOAs are private governments.
The 40 years of silence must come to an end now that some 20% of the US population live in HOAs. Let’s get behind “transparency to the people” and “let them know what’s going on.”
HOA Constitutional Government 