Category: Opinion

Posts by GKS

HOA reforms, SB 1454 and the inner workings of the legislature

Arizona’s Rep. Michelle Ugenti amended a bill in an underhanded tactic to bypass the Arizona Constitution[i] in her determined and overzealous efforts to have special laws enacted for special organizations. Attorney for the plaintiffs, Tim Hogan, Executive Director, Arizona Center for Law in the Public Interest, explained the reasons for the complaint in his Arizona Horizon PBS interview.[ii]

In her interviews, Ugenti defended her amendment in terms of procedural legislative rules; my Staff said it was legal: “that the rules committee staff found her amendment to be germane to the original bill”[iii]  and “her additions to the bill are legal, if for no other reason than one of the changes does deal with elections.”[iv]    Her actions can be better understood in terms of the inner workings of state legislatures, so let’s examine the inner workings of the Legislature. 

The Bill to Law publication[v] of the Arizona Senate talks about the role of the Legislative (“Leg”) Council (my emphasis):

All proposed bills are drafted and prepared for introduction by the Legislative Council staff. Legislative Council may be requested to prepare a proposed bill draft by any legislator, by partisan staff at the direction of a legislator, or by direction from a committee of the Senate.

. . . .

Most importantly, legal staff in Leg Council may suggest changes intended to help the proposal pass Constitutional muster. For example, the Constitution (Article IV, Part 2, Section 13) [the very issue of the complaint] requires that, “Every act shall embrace but one subject and matters properly connected therewith…” If proposed legislation obviously covers two or more subjects, Leg Council will advise the sponsor that the bill must be trimmed, split into two or more bills, or face a potentially successful challenge on Constitutional grounds.

 The question remains: who told who?  And did Ugenti overrule the Legislative Council? Or, did the Legislative Council get it all wrong?  

And what about the Rules Committee, that functions as described in the Bill to Law publication[vi]:

Legislators on the Rules Committee, aided by advice from the nonpartisan Rules Attorneys, function as a sort of legal review panel for proposed legislation. Among other things, the Rules Committee reviews each bill for constitutionality . . . .  

It is in the Rules Committee that potential difficulties with constitutionality and form are worked out. In rare instances a bill is rejected entirely. Most often amendments are proposed to correct deficiencies noted by the Rules Attorney.

 In a surprisingly frank statement of the inner workings of the Legislature (my emphasis), 

It is not unheard of for proposed legislation to pass even though almost all parties know it will be ruled unconstitutional — sometimes there are political reasons for doing so. For the most part, though, a ruling by the Rules Attorney that proposed legislation is unconstitutional is enough to severely dim any chances of the proposed bill becoming law.[vii]

I guess the legislature “got caught with its pants down” with respect to SB 1454!  Or, is it a case of “The sovereign can do no wrong”?   I don’t think so under our constitutional system of government.

In regard to HOA legislation, the legislative inner workings are described in my latest Commentaries:

  1. CAI reacts to HOA Enlightenment Movement with targeted lobbying of legislators
  2. What is this “association law” thing all about?
  3. The questionable role of HOA attorneys
  4. SB 1454: crossing the line for HOAs

I raise the question once again: what was Ugenti’s motive for dogmatically and overzealously pursuing these HOA amendments?  Is she a diehard, true believer in HOA-Land?  Or, were there other factors that pressured or influenced her in her decision to sneak HOA reforms into SB 1454?

 

References

[iii] “Public interest group claims last-minute HOA bill is unconstitutional”, Arizona Capitol Times, July 16, 2013

[iv] “Lawsuit filed against Arizona’s new HOA law”, East Valley Tribune, July 17, 2013.

[v] “The Role of the Legislative Council,” From Idea ….. To Bill ….. To Law, State Senator Randall Grant (2000) , p. 29. (http://www.azleg.gov/alisPDFs/BillToLaw.pdf).

[vi] Id., “The Role of the Rules Committee”, p. 51.

[vii] Id., p. 51-52.

CAI reacts to HOA Enlightenment Movement with targeted lobbying of legislators

Apparently, CAI Central in Falls Church, VA is feeling the heat of the Enlightenment Movement — the awakening of the public, the media and state legislators as to what HOA-Land is really all about.  It has sent an email (“You can Enhance CAI’s Advocacy Program by Participating in this Brief Interview,” July 24, 2013) to its faithful members — presumably its “volunteer” members who are for the most part HOA directors — asking for their participation in a survey of their relationships with elected officials.  Obviously, for intense, micro-managed lobbying efforts in support of CAI’s objectives.

By understanding our network of relationships with elected officials, we can build advocacy programs that advance our positions on any number of issues that directly impact our members and the community association industry.

Recall that I wrote that CAI was formed in 1973 to deal with the problems of HOAs as defined and modeled by the 1964 Homes Association Handbook.  In 1992, CAI made a substantial change in its mission and elected to no longer be an educational organization (Tax exempt 501(c)3) and to become a business trade organization (501(c)6).   It did so under mounting pressures and criticisms in articles, research journals, and books, including McKenzie’s Privatopia.  CAI had to reach the legislatures that controlled state laws regarding the HOA industry.

This latest “brief interview” is another attempt to influence legislators in favor of HOA friendly legislation, knowing that advocates are still fragmented.  With the response from the party faithful, CAI will not only know who the friendly legislators are, but what members have good relationships with specific officials.  CAI Central, or through the local state chapter, can then produce targeted emails — as successfully used by Obama in the past election — to influence legislators. The advocates, unless they want to demand copies of all emails, will be in the dark.

This tactic by CAI has ominous consequences for HOA reforms in every state!  It becomes extremely important that advocates and homeowners in every state seeking redress of HOA problems form an advocacy group to inform the public, the media and their legislators of their views.  As I have long argued, advocates must, even more so now, confront, challenge and expose CAI propaganda.  They must also advance quality reform legislation.

This tactic by CAI of addressing legislators in all states makes it a national issue of unfairly influencing state legislators to advance authoritarian private governments not subject to the US Constitution.  Homeowner rights advocacy groups must be given equal access to their legislators!  Advocates must be given equal bargaining powers over HOA issues!  Legislative committees must not be allowed to hear that the “stakeholders” met without hearing from an advocacy group!

Links to representative CAI “interview” questions: CAI-network3, CAI- network 4, CAI- network 5, and CAI-network6.

 

See What is this “association law” thing all about? and The questionable role of HOA attorneys.

What is this “association law” thing all about?

In the TimesDispatch internet column, “Housing”, two attorneys talk about “association law” (Mercer, Trigiani are guiding voices in homeowner association law). They are real estate attorneys. 

He [Mercer] and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say. . . . “They are a major force in what goes on with association law, and they are equally good at what they do,” [a real estate attorney] said.

But the featured spokesperson, Trigiani, is not identified as a CAI member who received an outstanding person award this past April from CAI, the national lobbying organization for HOAs, the Community Associations Institute.

Lucia Anna “Pia” Trigiani, Esq., a principal with the Virginia-based law firm MercerTrigiani, received one of CAI’s most prestigious honors April 19 at the organization’s 2013 Annual Conference and Exposition. (Trigiani, Dyekman Among Members Honored by CAI).

What is not made clear is just what association law is?   It is not a recognized classification of law, but one promoted by the legal-academic aristocrats and CAI.  (“Community Association Law Seminar, Jan. 23–25, 2014 | Las Vegas, NV.”)  The massive Restatement of Law series consists of some 96 volumes covering 26 categories of law, but no “association law” category.  In fact, laws pertaining to HOAs and covenants/servitudes, the legal basis for HOA authority, can be found in the Property: Servitudes series.

From my research into HOAs reading law encyclopedias, treatises, journals, court cases, legislation, articles and books — I’m not claiming to be an expert, but well read — association law appears to be a conglomeration of constitutional, property, contract, corporation and tort law.  These laws are cherry-picked to support the legitimacy and validity of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) that is the fundamental basis of HOA legal authority.  Whatever aspect of each of these laws that serves to support HOAs is incorporated into association law. Where there are conflicts with laws or contrary laws they are ignored, or association law is declared superior, or first modified and then incorporated into association law. 

Attorneys like to promote association law as sui generis, or a unique thing in a class of its own not subject to other laws.  This new thing, this association law, is an attempt to establish as legitimate and binding a new set of laws that conflict with and repudiate the Constitution.  Laws that distinguish and repudiate the fundamental principles of our system of government and principles of justice, derived from the organic law of this country – the US Constitution, its Bill of Rights, and the Declaration of Independence.  And for obvious reasons — for domination, power and control.

In his seminal book, Privatopia: Homeowners Associations and the Rise of Residential Private Government, Even McKenzie wrote in 1994,

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. . . . The balance of power between the individual and the private government is reversed in HOAs. … The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

And this is the purpose in establishing “association law” — to avoid constitutional protections, to deprive people of their life, liberty, or property  without due process of law, and  to deny homeowners of the equal protection of  the laws that apply to all public bodies.

 

See  The questionable role of HOA attorneys

The questionable role of HOA attorneys

In my view after 13 years dealing with HOA attorneys, and especially those who are members of CAI across the country, they are lawyers first and foremost and not advocates for a cause.  They deal with the laws and statutes and CC&Rs as they are, having had a profound role in their creation.

An advocate fights for a cause, or at least, for justice and fair play against unjust, unfair and illegitimate laws.  He sees a societal wrong and seeks to redress these ills of society.  The HOA attorneys defend private corporations without a moral or ethical perspective, as they insist is the law. They do not concern themselves with the de facto acts of HOAs as private governments.   Therefore, under the CC&Rs contract, concern for individual rights and freedoms, those basic American values, are of little importance.

Over the years I’ve seen attorneys cross the line and act in collusion with the wrong-doing of HOA boards, even advising how “to deal with the new laws” that grant homeowner rights and freedoms.  They have proposed suggestions that are in keeping with the letter of the law while openly unreasonable and designed to give the homeowner a “hard time.”  A prime example, offered by the current president of CAI’s College of Community Association Lawyers (CCAL), in his guidelines[i] on videotaping board HOA meetings, as permitted by Arizona’s ARS 33-1248 and 33-1804. 

I’m sorry, but I must admit that my opening statement above is wrong. The CAI HOA attorneys are indeed advocates, advocates for HOAs under the banner, as stated on CAI’s home web page “Building Better Communities”[ii] and “responsible citizenship.” The banner is quite explicit as stated on the Arizona chapter’s web page, “Creating Better Communities Through HOA’s”[iii]  (sic).

When their acts and actions before state legislatures are contrasted with their lofty public relations materials, the average person gets a clear picture of the better America being advocated by CAI attorneys.  It’s an America not based on the basic American values that created this great nation, but on authoritarian private governments permitted to operate outside the protections of the US and state constitutions.  And those protections were established to protect the rights of the people, and not private governments.

In contrast to the intents and purposes of HOA “constitutions,” America took pains in its Constitution to protect individual rights and freedoms:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.[iv]

 

Notes

[i] Videotaping Board Meetings – “Reasonable Rules” (http://www.carpenterhazlewood.com/resources/enews/2011/videotaping-board-meetings-reasonable-rules, April 29, 2011).

[ii]Celebrating its 40th anniversary in 2013, CAI provides information and education to community associations and the professionals who support them. Our mission is to inspire professionalism, effective leadership and responsible citizenship. (http://www.caionline.org/Pages/Default.aspx, July 21, 2013).

[iii] CAI-Central Arizona Chapter (http://www.cai-az.org/home.html, July 21, 2013).

[iv] The Preamble to the Bill of Rights.

SB 1454: crossing the line for HOAs

 

“If angels were to govern men, neither external nor internal controls on government would be necessary.” James Madison, The Federalist papers, # 51.

 

The issue presented by the lawsuit challenging the “one subject” constitutionality of Arizona’s SB 1454 is the violation of the Arizona Constitution.  The motivation, which brought about this violation, is a second and very important concern for the people of Arizona but is not the focus of the complaint.  To argue that the constitution was justifiably violated for a good cause would make a mockery of the law and democratic government under the US Constitution.

In 2007, then Governor Napolitano vetoed SB 1330 that would have restored homestead protections to HOA homes. Napolitano simply wrote, referring to the Arizona Constitution,

 “Today I vetoed Senate Bill 1330, which dealt with a variety of unrelated subjects. . . . This bill violates the single subject rule. . . . I am hopeful that the legislature will responsibly deal with these subjects (as single subjects) and present legislation to me in a form that I can sign within the next several days.”

The motivation behind the acts to pass SB 1454 and the failure by the Legislature and Governor to reject the bill for the flagrant violation of the Arizona Constitution speaks for itself. And that can only be viewed as favoring HOAs and the HOA management firms.  SB 1454 raises other questions of constitutional violations not addressed in this complaint:  special laws for special groups, and a violation of the separation of powers doctrine as the supreme court has the authority to set rules and regulations affecting the judiciary, not the legislature.

The enacting of SB 1454 by Arizona resembles the many complaints against HOA boards for doing as they please without concern for the law and governing documents.  The HOA Declaration or constitution is repeatedly ignored by HOA boards.   In simple terms, making SB 1454 law demonstrates Arizona’s role in establishing the New America of HOA-Land.

See signed SB 1454 violates AZ Const. that holds extraneous HOA amendments as invalid,

advocates sue State of AZ for unconstitutional HOA amendments bill – SB1454, and

CBS TV attorney interview,

http://www.kpho.com/video?clipId=9100383&autostart=true