HOA Constitutional Government

Greg Mocker of local Phoenix CBS TV asked those hard questions of Arizona Speaker Pro Tempore and Rules Committee Chair Bob Robson. And Robson answered that he will protect these private contractual governments because he doesn’t trust the average homeowner who will turn into a deadbeat as soon as we restore the equal application of the laws to HOAs — the homestead exemption and due process protections guaranteed by the Constitution, except in private government HOAs. What Rules Chair Robson had also said is that he will protect these private organizations and deny homeowners the protections of the 14th amendment.

Why is he supporting HOA principalities allowed to operate outside the American system of government? Why isn’t our American system of democracy good enough for HOAs? Why is the House promoting authoritarian governments that do not protect those cherished rights and freedoms guaranteed for all Americans?

Is the Speaker Pro Tempore making policy statements for the House leadership? These are precisely the statements and attitudes that make HOAs state actors.

We are witnessing the Tyranny of the Legislature, where one person is allowed by the leadership to control the fate of millions of good people in Arizona. House Rule 37(3) allows the representatives to submit removal requests to place these bills on the active calendar. Where is the vote? Why this highly unusual tactic of not allowing a floor vote by all the Representatives? Because the votes are there to pass these bills on the floor, that’s why!

Here are excepts from Robson’s interview:

“Rules should not be changed”. (To pass these new bills. Greg’s retort: What about in 1996 when you took away these rights?)

”I don’t feel comfortable with certain aspects of this . . .” (the homestead exemption bill.) Well, it’s a single sentence change and his responsibilities lie in the area of questions of constitutionality and nothing else as governed by the House Rules. It is not his call — it’s an abuse of discretion and authority!! Placing everyone under the same laws cannot be seen as being unconstitutional. But removing them as in 1996 is unconstitutional.

“Without the homestead exemption you have a situation where people can let there dues lapse … “(this is outright protection of private organizations without any governmental interest to offset the unequal application of the laws. Further, it looks down with disdain and distrust upon the good people of Arizona who are living in HOAs.

“The quality of life will definitely be distorted …” Is he now the Guardian and Official Protector of the Quality of Life? What audacity by the Speaker Pro Tempore. Shame on him!

Homeowner rights advocates must not allow these statements to go unanswered and be accepted as, “That’s the way it is. Get used to it!”

With the actions by the Arizona House Leadership to not allow substantive HOA reform bills from being voted on by the entire House, Arizona is moving one step closer to becoming The United HOAs of Arizona¹. This deliberate refusal to hear these bills can only be interpreted as wholehearted support to permit the HOA principality², that authoritarian, private contractual system of government, to continue its denial of the constitutional rights of homeowners — rights that they would be entitled to under a municipal government.

HOAs, as Robert H. Nelson wrote in the closing chapters of his new book, Private Neighborhoods and the Transformation of Local Government, will replace existing local municipal governments as these HOAs take on more and more governmental functions under the protection of state legislatures. And with this transformation in American governance, the US Constitution becomes a thing of the past, obviated and replaced without any amendments as required by the Constitution. And the War Between the States becomes a footnote in history as the one and only attempt to preserve the Union.

Americans must not let this happen. Americans must put a stop to what was described as “the emergence and acceptance of a quiet innovation in housing” (from the book subtitle by Donald R. Stabile, Community Associations), because it is really a backdoor subversion of the American system of government.

Homeowners in Arizona can do their part by insisting that the Arizona House leadership move these HOA bills to the Active Calendar for a floor vote.

Notes:

1. See United HOAs of Arizona, George K. Staropoli, August 2004, http://pvtgov.blogspot.com/2005/08/united-hoas-of-arizona.html
2. See The HOA Principality, George K. Staropoli, January 2005, http://pvtgov.blogspot.com/2005_01_01_pvtgov_archive.html

OPEN EMAIL LETTER
Feb. 28, 2006

TO: All Arizona House Representatives

What do the House Leaders fear in allowing the HOA bills to be heard by ALL the elected Representatives? Are they afraid that, if passed, that doom and gloom will or a catastrophe upon the State of Arizona will result by granting homeowners the equal protection of the laws and due process protections? These are the same irrational fears that we’ve heard over and over again by the special interests groups seeking to protect their income streams. What else can it be?

Does the House leadership feel that without the coercive protection of state laws, people will shirk HOAs? That by holding the HOA boards, management firms and attorneys accountable under the law, like any other group or governmental entity, the HOAs will fail? Is the Constitution still the law of the land or can anybody draft a private government contract to avoid the US and state Constitutional protections of the peoples rights and freedoms?

Will the housing industry collapse? Will builders run for the hills? Will people seek the older authoritarian forms of private HOA governance? Or will life go on with the good people living in HOAs feeling that they are now part of the American landscape? And will builders continue to build and buyers continue to buy?

I say let the elected Representativess vote their conscience for which they were chosen by the people. We do not need a dictator group or chairman to tell the people what is good for them. Pass the HOA bills out of the Rules committee and place them on the Active Calendar.

Let our duly elected representatives do their job!

Please note that the Twin Rivers Homeowners Assn attorney, Barry S. Goodman, is an attorney at Greenbaum Rowe Smith & Davis LLP, that is a 2006 Platinum PLUS Sponsor for the NJ CAI chapter (http://cainj.com)

Please note that Scott Pohl, TR Assn president is a director of the CAI NJ chapter.

Please note that CAI filed an amicus curiae brief in favor of the HOA, and warned against the unwise extension of constitutional protections.

CAI is Community Associations Institute that turned from attempting to educate homeowners on how to live in HOAs for some 20 years, to a business trade group that lobbys state legislatures to protect the income stream of its member attorneys and management firms, as is the purpose of a business trade group..

The New Jersey Supreme Court heard this appeal that included issues of violations of the NJ constitution by the Twin Rivers HOA. The court held,

We reverse the general ruling in respect of the fundamental rights exercises implicated that TRHA was not subject to limitations imposed by the New Jersey Constitution and that the business judgment rule and contractual standards applied. We remand plaintiffs’ claims in counts one, two, and three of the complaint for reconsideration under the proper standard.

This is a solid victory that HOAs cannot operate outside the Constitution by arguing that they are just a simple private agreement among consenting adults, not to be interfered with by the government. In essence, that they are principalities operating with their own, untouchable constitutions.

CAI amicus curiae brief in opposition:

This Court must balance the plaintiff’s claims that focus on their perceived individual “rights” versus the rights and legitimate economic expectations of other homeowners.

In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm,and serve as the preferred mechanism for decision-making,rather than members effectuating change through the democratic process.

Court filings:
The complete opinion (pdf)
appeals brief (pdf)
CAI amicus brief (pdf)
Response to CAI (doc)