Category: Opinion

This session must decide on Rep. Robaina’s, the homeowner rights champion, omnibus or “all-inclusive” Community Associations reform bill, HB 1397, with its 190 pages of reforms. (The first 12 and a-half pages just summarize the changes). The bill attempts to deal with both the broader issues of the application of democratic principles and the use of police powers to regulate the acts and actions of HOA governance — requiring necessary actions while prohibiting others. State police power is often used to protect a weaker faction (segment or part of society) from a stronger faction.

HB 1397 jumps right into the application of Florida’s police powers, permitted under the “establish justice”, “insure domestic tranquility”, and “promote the general welfare” objectives of the US Constitution. The bill begins with an addition of subsection (10) to § 20.165, Dept. of Business and Professional Regulation, that adds strong enforcement authority to employees of DBPR, such as to arrest, carry firearms, issue court subpoenas, etc. HB 1397 provides for very strong and very necessary enforcement authority if Florida laws are to have any meaning and standing as a bona fide law instead of a mockery of justice. There are also protections against home invasion by HOA officials and agents (§ 718.111(5)), paralleling that protection already provided to homeowners not living in HOAs by the 4th and 14th Amendments to the US Constitution. These reforms, alone, restore lost rights and freedoms enjoyed by non-HOA residents, and reduce the second-class citizenship of HOA residents. The New America of HOA-land special laws and “constitutions” protected by the state must cease! Rep. Robaina’s bill goes a long way to restore the America of our Founding Fathers being quietly encroached by HOA-land special interests.

The second aspect to HOA reform legislation that concerns the systemic, the very structure of the legal scheme, failings and repudiations of American democracy. While the ends of the homeowner association mandatory governance of subdivisions are desirable in certain respects, the means to achieve these ends have been a disgraceful repudiation of the principles and values of the US Constitution with its concern for the protection of individual rights and freedoms. The very legal scheme or concept of homeowner associations flies in the face of the Constitution and has been defended by the weak argument of voluntary agreement to the loss of individual rights and freedoms by the simple argument, “Well, they still live there, don’t they?”

There are questions of appropriate due process protections that only say “after notice and an opportunity to be heard” fines may be imposed by the board, without explicitly requiring an independent tribunal where witnesses and evidence can be question by the homeowner. And there are questions of “fair elections” procedures, of the need for free speech and access to all relevant information necessary to protect the homeowner from abusive actions by the board, of unusual punishment over miniscule unpaid assessments in terms of the greater loss suffered by foreclosure, where the HOA has not advanced any funds like the mortgage company (which is ascribing public government attributes to the private HOA entity), etc. How can a homeowner file fraud charges, as an example, when access to records is denied and not enforced by statute?

Analyzing a bill of the magnitude of HB 1397 places burdens upon the average homeowner with limited time and resources as opposed to the hired-hand, paid lobbyists of the special interest groups. Homeowners must understand that HB 1397 will be the result, for all practical matters, of a compromise between opposing parties, and the decision to support the bill must so accept this reality of governance. It will be a question of “pluses and minuses.” Trade-offs will be made, but each must be weighed against the balancing scale of justice for the people, first and foremost. Rep. Robaina’s bill is a must! Once passed into law, “blemishes” can be adjusted and will subject to the democratic process of give and take between the homeowners themselves, and between homeowners and the special interests.

Political scientists and public opinion organizations are looking to the judiciary to fulfill its constitutional role as a separate and equal branch of government, and to establish justice in HOA-land. Others argue that the independence of the judiciary, in general, has been tainted over the years, and justice with respect to legal principles is tainted by the personal preferences of the judges themselves. Why else is there the highly controversial debate on the selection of new Supreme Court Justices? America is no longer a land under the rule of law, but a land under the rule of the men in black and their political leanings; where the doctrine of stare decisis, itself, falls victim to the preferences of the judges.

Stare decisis is the rule of law that imports the aura of legitimacy on the judicial process by holding future decisions to be bound by prior decisions that serve as “precedent.” The doctrine of stare decisis

permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government. Vasquez v. Hillery, 474 US 254 (1986).

Hansford and Spriggs, researchers who had conducted studies on the use of precedent, state: “Americans overwhelmingly believe in the idea that judges should make decisions based on neutral, legal criteria“, that the doctrine of stare decisis fosters “the legitimacy of the judiciary as an institution and the legitimacy of court decisions“, and that “The justices agree with the idea that their capacity to rule hinges on legitimacy.” And since some third party must implement their decisions — carry them out or enforce the law — the researchers argue that “legitimacy encourages compliance, it enhances the powers of the courts and facilitates their ability to cause legal and political change.” (The Politics of Precedent on the U.S. Supreme Court, Princeton Univ. Press, 2006).

However, the case reporters are full of decisions where precedents have been reversed or overruled by judges, declaring that the cited precedent is “distinguished from the case at hand,” or simply “does not apply”, or declaring an outright “do not agree with.” So, in spite of the above statements, following precedent is not an absolute rule. And, if one thinks about it, if a precedent were based on an error or misapplication of law, then justice demands that the wrong be righted. It should be readily accepted that the modification of a precedent with the aim of “doing justice” is necessary to maintain the integrity of the judiciary. What then accounts for how and when a precedent was actually revised in some manner (which was the purpose of the research by Hanford and Spriggs mentioned above)?

The answer to this question, as the researchers found, was given in the opening paragraph above: the doctrine of stare decisis, itself, falls victim to the preferences of the judges. The closer the precedent was to the judges views, the more the precedent would be followed, and vice versa. Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges (p. 75). (Of course, the preferences of the judges are not the sole factors in arriving at their decisions, but the research is supportive on the effect of personal preferences on the acceptance of a precedent).

Based on the above, it is not too difficult to understand why court decisions have, in general, favored homeowners associations over homeowners. State public policy is replete with HOA protectionism, which has an influence on the judges, and there’s a long history of HOA favorable decisions to serve as precedent. The negative precedent history is a direct result of the adhesion nature of the HOA governing documents and the state laws that deny, by commission and omission, homeowner protections. In short, no wonder the odds are against the restoration of individual liberties and freedoms.

Two important state supreme court decisions that stand out as examples are Inwood v. Harris (736 S.W.2d 632 Tex. 1987) and Committee for a Better Twin Rivers v. Twin Rivers (929 A.2d 1060 (NJ 2007). A careful reading of these two HOA cases, and, in particular, the court holdings and reasoning behind their decisions, will raise issues of HOA bias. Why did the judges emphasize some precedents and ignore others? What issues were addressed by the judges? What issues were dismissed or ignored? Why? In reaching their decisions, was justice done? (These questions should be asked when reading any court decision).

Another very good example, not a supreme court decision but a decision by a lower court in an appeal of an administrative law judge holding, is the Arizona superior court judge decision declaring a two year old statute as unconstitutional: Troon Village HOA v. Waugaman (see Examining the Waugaman decision in the interest of doing justice, February 5, 2009). In this case, the selectivity of the judge comes through when she ignores, for the most part, the Attorney General’s and defefendant’s briefs, jumps to one aspect of a precedent, and uses, verbatim, the plaintiff’s argument as her holding.

And, quite interestingly, a second appeal, Phoenix Townhouse v. Merrit (see The State of Arizona will not protect buyers of HOA homes!), to broaden the Waugaman decision to apply to all HOAs cites the Waugaman decision, not an appellate court, as precedent! The behavior of the judge in this appeal raises concerns of abuse of discretion and judicial activism, or is it judicial lawlessness.

In summary, the calls by the public opinion organizations for vigorous judicial activism in support of liberty and the Constitution are desparately needed to address the ills of society wrought upon Americans by so-called voluntary organizations, the HOAs. Clint Bolick, Director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, is angered by examples of judicial lawlessness that “deserve contempt, for they do extreme damage to the integrity of the judiciary and to the rule of law that undergrids a free society.” (David’s Hammer: the case for an activist judiciary, Cato Institute, 2007).

And with respect to the treatment of precedent and the effect of the personal preferences of the judges, the judiciary needs to revisit the purpose of the Constitution, as stated in its Preamble, the first being “to establish justice.”

There was much debate by The Founding Fathers over the structure of the government being created under the US Constitution. Was it a democracy? A republic? Was it a federation with one sovereign over the states? The consensus seemed to settle as Alexander Hamilton wrote regarding a national bank,

The powers of sovereignty are in this country divided between the National and State Governments . . . . each of the portions of powers delegated to one or the other . . . is . . . sovereign with regard to its proper objects.

John Dickinson, representative from Delaware, offered that America

could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union.

Today, we are witness to the acceptance of the quiet emergence of a layer of independent republics as a third level of government in our American federation. This layer lies within each of the state republics and shares in the sovereignty of the people in the same manner as the federal-state co-sovereignty expressed above. Areas are carved out by means of a public-private partnership that utilizes restrictive covenants, which are permitted to supercede public laws and ordinances, to regulate and control the people within their territorial bounds. This layer, creating a New America, is referred to as homeowners associations.

I cannot understand why these states have not only permitted and agreed to the secession of independent HOA “principalities”, yet continue to argue over states rights with the federal government. On one hand the states are highly protective of their sovereign rights, their sovereign powers, yet they have no concerns over the surrender of these cherished powers to private “constitutions” created by profit motivated businesses. These broad powers fall under the classification of “police powers”, or the power to regulate and control the people for their health, safety, morals and welfare in addition to the punishment for crimes and the administration of justice.

Why have the states willingly allowed this new sub-layer of government, the HOAs, to yield many of these powers without oversight or providing for the protection of not only federal constitutional rights, but state constitutional rights as well? These HOAs, this new sub-state layer of republics, which do not have to be chartered under state municipality laws, truly operate as independent principalities.

Welcome to the New American federalism in support of sub-state HOA governments.

The Goldwater Center for Constitutional Government issued a research report by its Director, Nick Dranias, that criticizes the current state of public local government, and proposes a new model for by means of a Local Liberty Charter. (See A New Charter for American Cities). These shortcomings include:

1. [the creation of numerous] special districts to engage in spending projects that would otherwise be unconstitutional under reforms enacted after the stagflation of the 1970s. . . .
2. Arizona’s local governments are functioning as if securing liberty were irrelevant to their mission. . . . If anything, the growth of local government has been a detriment to liberty.”
3. Local government bureaucracies are more intrusive, opaque and less accountable than ever, with public records request responsiveness in Arizona receiving a grade of “F” . . . .
4. Legitimate governments are meant to secure liberty. Local governments are no exception.
5. These principles of liberty [in state constitutions], however, are not reliably enforced at any level of government.
6. Our political system has led to a concentration of power at the local level that would be anathema elsewhere in government.
7. There are “too few checks on the abuse of local power” and that addressing this problem requires “systematic” reform.

All of the above criticisms of public local government apply equally well to private, contractual local HOA governments. Just extend “public local government” to that of an “indirect” delegation of legislative powers by means of a public-private governance partnership, otherwise known as the homeowners association.

The report does include a discussion of the very important and often misunderstood concept of factions and minority rights, and how our democratic principles was designed to deal with the problems of “majority rule.” I am reminded of the first inaugural speech in 1801 of that preeminent advocate of individual rights and freedoms, Thomas Jefferson, who said,

A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits . . . . This is the sum of good government.

Jefferson understood the need for regulations to prevent one faction, HOA special interests and misguided boards of directors, from injuring another faction, the homeowner-members, and from trampling on the unalienable rights of the less powerful minority. And if indeed misguided statutes have been employed in this dominance by one faction, then it is the duty of government to establish justice by correcting the mistakes of the past, and intervening to right the wrongs.

However, I am skeptical of the proposed solution to the problems of local government by means of an activist judiciary to enforce justice and the equal application of the laws. The decisions and events related to the Maricopa Superior Court in Arizona that raise serious questions of the integrity of the court, as described in prior Commentaries on this website, do not engender warm-hearted support that the judiciary will not be influenced by current public policy and politics. (See HOAs and the integrity of the AZ Superior Court).

This report is lengthy, but must be read and discussed in order to understand the alternatives for a New America. More HOA private governments, or a return to the democratic governments answerable and accountable to the supreme law of the land, the Constitution.

In view of Arizona Judge McMurdie’s March 4 Minute Entry , I firmly believe

To allow this decision to stand would be a travesty of justice.  The information provided in the letter, and contained in my Answer, go without  a response from the plaintiff and their CAI attorneys, and without a hearing as to their merits.  I believe I am, and the people are, entitled to a day in court.