HOAs: the failure in the American Experiment in democratic self-government

During my Jan. 5, 2009 meeting with the Arizona Department of Fire, Building and Life Safety, the agency charged with processing HOA complaints for the Office of Administrative Hearings (OAH) adjudication, the Director indicated that HOAs provide a benefit to the community.  I replied,  “Yes, but these goals can be accomplished without private contractual agreements that function outside the Constitution and its protections of individual rights.”  (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters). Namely, special tax districts and home rule statutes.
 
HOAs allow such a contradiction to the Constitution, supposedly the supreme law of the land, with respect to ex post facto CC&R amendments (that sacrosanct “contract” is meaningless when it can be changed without owner consent), the absence of due process protections by a just and independent tribunal (such as OAH), the unequal justice under the law, and the surrender of rights and freedoms without explicit consent, to name a few.
 
What would Alexis de Tocqueville (Democracy in America) say, if he toured America today as he did in 1832,  about the American Experiment and homeowner associations?  
 
Additional reading on the New America of HOA principalities and the evolution of American society and governance, a growing failure of the American Experiment in democratic self-government established by the Founding Fathers, can be found:
 
 
 

No HOA police force — no HOA government!

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.”

Goldwater Institute: separate and unequal constitutions for HOAs

In reply to my Arizona Capitol Times Commentary of December 12th, Constitutional Center Director Nick Dranias believes HOAs are bona fide consensual relationships and regulating homeowners associations would “stand the Constitution on its head.”  (See Goldwater Institute: regulating HOAs “stands Constitution on its head”).

In the late 1950s the Southern states enacted a Poll Tax and instituted certain “tests” in order for citizens to be eligible to register to vote.  No federal or state laws were violated, since the states were permitted to determine the methods for registering citizens, so long as it was not based on race (15th Amendment).  Of course, the tax was set at a level very few Blacks could afford to pay, and among the test questions were such gems as (LBJ: Master of the Senate, Robert A. Caro, p. x, 2002).
Name all of Alabama’s 67 county judges.
What was the date that Oklahoma was admitted to the Union?
How many bubbles in  bar of soap?
While legal, these state laws were intended to keep Blacks from voting, and were plainly an unjust and unfair vehicle to support the will of the local power groups.  Today, we can ask about the intentions and use of privately developed HOA restrictive covenants, and the arguments by the legal-academic aristocrats promoting the supremacy of servitude laws over constitutional law:
Can private, contractual governments be used to  circumvent Constitutional protections?  If so, then what becomes of the Constitution?  Can the people opt-out of the Union?  President Lincoln didn’t think so, and Americans paid dearly to make that point.
The Goldwater Institute’s continued dialog on HOAs and the Constitution reflects the view of HOAs as independent principalities existing outside the Constitution, and thus establishing a new order for Americans, a New America of HOA-lands.

Goldwater Institute: regulating HOAs "stands Constitution on its head"

In reply to my Arizona Capitol Times Commentary of December 12th (see The HOA experiment in privatized government is alive and well, and growing), Constitutional Center Director Nick Dranias believes HOAs are bona fide consenual relationships and regulating homeowners associations would “stand the Constitution on its head.”  ——

HOAs are not private governments

By Nick Dranias

Friday, December 19, 2008

George K. Staropoli in his recent commentary, “Just what is the Goldwater Institute trying to say,” exhibits a deep misunderstanding of both the Institute’s reform proposals and constitutional law when he proclaims limitations on the power of local government will somehow lead to “secessionist” homeowner’s associations, which could then “circumvent the Constitution.”
Staropoli’s mantra that an HOA is a private “government” does not make it so. There is a fundamental difference between local governments, such as municipalities, which enjoy geographical monopolies on the use of force through their police powers, and HOAs, which clearly do not have such powers.
That difference is what justifies tailoring the principles found in the Bill of Rights to more tightly constrain the vast regulatory powers of local governments, rather than HOAs. Indeed, Staropoli’s radical notion that the principles found in the Bill of Rights should instead be applied through legislation to regulate private, consensual relationships stands the Constitution on its head. The Goldwater Institute stands proudly behind its idea that the equivalent of “municipal constitutions” are needed to reform local government.

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Look for my rebuttal, coming soon, calling for a national debate on HOAs and the Constitution:   Can private, contractual governments be used to  circumvent Constitutional protections?  If so, then what is the purpose of the Constitution?

Goldwater Institute: regulating HOAs “stands Constitution on its head”

In reply to my Arizona Capitol Times Commentary of December 12th (see The HOA experiment in privatized government is alive and well, and growing), Constitutional Center Director Nick Dranias believes HOAs are bona fide consenual relationships and regulating homeowners associations would “stand the Constitution on its head.”  ——

HOAs are not private governments

By Nick Dranias

Friday, December 19, 2008

George K. Staropoli in his recent commentary, “Just what is the Goldwater Institute trying to say,” exhibits a deep misunderstanding of both the Institute’s reform proposals and constitutional law when he proclaims limitations on the power of local government will somehow lead to “secessionist” homeowner’s associations, which could then “circumvent the Constitution.”
Staropoli’s mantra that an HOA is a private “government” does not make it so. There is a fundamental difference between local governments, such as municipalities, which enjoy geographical monopolies on the use of force through their police powers, and HOAs, which clearly do not have such powers.
That difference is what justifies tailoring the principles found in the Bill of Rights to more tightly constrain the vast regulatory powers of local governments, rather than HOAs. Indeed, Staropoli’s radical notion that the principles found in the Bill of Rights should instead be applied through legislation to regulate private, consensual relationships stands the Constitution on its head. The Goldwater Institute stands proudly behind its idea that the equivalent of “municipal constitutions” are needed to reform local government.

####

Look for my rebuttal, coming soon, calling for a national debate on HOAs and the Constitution:   Can private, contractual governments be used to  circumvent Constitutional protections?  If so, then what is the purpose of the Constitution?