As a result of a conflict over bees and whether local ordinances or HOA CC&Rs governing beekeeping prevail, the Tennessee Attorney General is being asked his opinion on HOAs as public entities. Rep. Glen Casada has sought a clarification from Tennessee Attorney General Robert Cooper “for an opinion on whether or not the HOA is considered a political subdivision of the state.” (The AG was appointed by the TN Supreme Court, and is an officer of the court and not the Executive branch).
How shall the AG decide? Take a very narrow view and simply declare that the HOA is a nonprofit corporation under corporation laws and not a municipal corporation; therefore it not a state entity. If so, how does he address the fact that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck?” “A rose by any other name is a rose.” A tax by any other name, assessments, is a tax. A law by any other name, regulations or covenants, is a law. In fact, British municipal law equates the term law with by-law. “3. British . an ordinance of a municipality or community.”
Let us assume that the AG takes a firm stand and enters into the foray. The safest approach is to turn to the ancient public functions test of 1946 with respect to a company town and free speech. His decision would deny that the HOA is a public entity, probably, since the HOA doesn’t meet the public functions test.
This view has always disturbed me when I examine the state’s municipality laws on incorporation of towns and villages. They ain’t got no such tests, yet they are declared public entities if they declare their allegiance to the Constitution and are approved by the state. I guess it’s OK to use double standards when it comes to HOA governments.
Are there any other criteria that bear on whether or not an entity is a public entity, or that it is a state actor acting as if it were indeed a state entity? The law is rather extensive on state actors and state action. In today’s environment with the attitude of “no government interference,” applying state actor designations to HOAs will be a difficult task since it would extend the reaches of “big government.” But, when dogma prevails over facts we must fight for “truth, justice and the American way.”
US Supreme Court holding in TN state actor case
The US Supreme Court has set several criteria for state actions and state actors, among them: a “close nexus,” a “symbiotic” relationship, “state’s exercise of coercive power”, “entwined with governmental policies”, and “significant encouragement, either overt or covert.” They are discussed, in of all cases, in Brentwood v. Tennessee Secondary Schools, 531 U.S. 288 (2001).
I hope Attorney General Cooper will uphold the US and Tennessee constitutions, knowing full well that even homeowners living in HOAs are US citizens and citizens of the State of Tennessee, with full rights, privileges and immunities.
HOA Constitutional Government 
great post, very informative. I wonder why the other specialists of this sector do not notice this.
You must continue your writing. I’m confident, you have a huge readers’
base already!
Evan McKenzie, author of Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994) and Beyond Privatopia: Rethinking Residential Private Government ( 2011), wrote,
“Interesting–I wonder if the AG will take this seriously or just blow it off. The case George cites (Brentwood Academy) deals with a not for profit corporation that was an association of schools set up to regulate sports. There was so much state involvement with the corporation that it was a state actor.
“George’s analysis of the HOA situation is too inclusive, if you look at the opinion in Brentwood Academy. The court basically says that it is a case by case situation that depends on its facts–there’s no clear rule. Most HOAs couldn’t possibly qualify as state actors under current USSC precedents, because they aren’t doing enough and aren’t sufficiently connected with local government (which have abdicated all responsibility for HOAs)–at least, not with the court we have now.
“If Obama wins and gets to replace Scalia and Kennedy, maybe we can get somewhere.”
(See http://privatopia.blogspot.com/)
Article 11 in the sacred CC&Rs dictated by the developer in 1997 says: “No noxious or offensive operation, and/or business or trade of any kind, even if allowed by Municipal Zoning, shall be allowed or maintained on any lot or any portion of a lot, and nothing shall be done on any lot which may constitute a nuisance or an unreasonable annoyance to the neighborhood.” The HOA is a nuisance and is unreasonable in most cases, therefore the HOA should not be allowed. When HOA stirs up trouble over anything that Americans are free to do under city/state law, they become a liberty sucking parasite: extermination authorized!
First, I believe that you are engaged in a hobby, and not a business or trade. Second, the HOA must prove that your bees are a nuisance and an “unreasonable annoyance to the neighborhood.” Does that mean a vote of the neighbors to determine reasonableness? Seems reasonable to me. Of course, you would want equal time and access to reach the neighbors if the HOA resorts to campaigning – newsletter, emails, meetings, etc.
Third, and very important to the AG’s opinion, which I hope he does undertake, the CC&Rs use “even if allowed by Municipal Zoning” (and this occurs several times in the CC&Rs). This constitutes a surrender of rights that others citizens enjoy, especially when the public policy of the county is supportive of beekeeping, “No county, municipality, consolidated government, or other political subdivision of this state shall adopt or continue in effect any ordinance or resolution prohibiting the establishment or maintenance of honeybees in hives” (Tennessee Code 44-15-124). And, BTW, covenants contrary to public policy are invalid (Restatement of Property: Servitudes, Sec. 3.1)
The fact that CC&Rs waive and surrender homeowner rights without the consent of the homeowner should in itself cause the HOA to be regarded as a public entity under the “coercion” criteria of the US Supreme Court. The court’s upholding of the covenant would constitute coercion.
For this reason alone, the question of consent and failing to meet tests of judicial scrutiny for the surrender of the protection of the laws of Tennessee are sufficient for the Tennessee AG to offer an opinion.