Tag: Arizona

HOAs & state legislatures: rule by the Prince or by the Constitution?

“Where ethical restraint is lacking, there can be no hope of overcoming problems.”[1]

With the banishment of God from government, our “unalienable” rights, which were held by the Founding Fathers to be superior to any rights granted by any government, have been declared null and void by the US Supreme Court. With no substitute standard being announced by the Supremes to guide the people, they are left to flounder. And we have floundered.[2]

In his commentary on Machiavelli’s The Prince,[3] William B. Allen provides Machiavelli’s view of politicians,

Once the obligation to act according to natural or devine standards is removed, the question that remains . . . is how to participate in the management of political appearances to secure their [the politicians’] own interests.[4]

For Machiavelli “the role of morals in politics is mainly to cultivate illusions . . . politics is merely appearance and morality is merely pretense.”[5] 

Understandably, it is not surprising that the Supremes have held that all legislation is presumed to be constitutional, placing the burden on the people to prove the unconstitutionality of a law.  With this legal doctrine, the Supremes, the 9 Men In Black, have declared that “the sovereign can do no wrong.”  But, that is not the fundamental basis of our system of government with its separation of powers, checks and balances, and Bill of Rights.  The Supremes just abdicated their function under the Constitution.  In its place, it has assigned the role of the Protector of the Constitution to the people, the average person. 

Consistent with this doctrine, the Arizona Legislature also presumes all statutes to be constitutional, perhaps because the Legislature provides checks on the constitutionality of a bill before it can be sent to the Governor for signing. (The Arizona Constitution also provides a check on statute constitutionality before signing by the Governor).

However, in spite of statements to the contrary found in the Arizona State Legislature guides for the public, the legislature and individual legislators have failed to protect the people against the violations of the Arizona Constitution as in the case of the unconstitutional SB1454. They have ignored their duties, obligations and rules for the proper functioning of the Legislative Council and the Rules Committee. (See HOA reforms, SB 1454 and the inner workings of the legislature).

In contrast to Machiavelli’s principles of government, Hadley Arkes reminds us that

The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators (emphasis added).[6]

He quotes US Justice Wilson’s (1798) warning that

The people in sovereign office might well perform unjustified and therefore lawless acts . . . such acts, though vested with ‘legal’ authority could not fully claim nor elicit from the people an obligation to obey.[7]

 

In regard to the HOA amendments surreptitiously placed into SB 1454, Arizona has dropped the ball.  Arizona has fallen off the pedestal.

 

References

[1] Ethics for the New Millennium, His Holiness The Dalai Lama, p. 26, Riverhead Books, 1999.

[2]God is dead, and so, too, are our unalienable rights, HOA Constitutional Government, February 5, 2008

[3] The Prince, Niccolo Machiavelli, Yale University, 1997.

[4] Id., Machiavelli and Modernity, W. B. Allen, p. 108.

[5] Id., p. 104.

[6] Supra n 3, Machiavelli and America, Hadley Arkes, p. 145.

[7] Id., p. 128.

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.

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.

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

Staropoli & Brown v. State of Arizona, CV 2013-009991, July 16, 2013

Arizona Center for Law in the Public Interest, Attorneys for the Plaintiffs

Timothy M. Hogan, Joy E. Herr-Cardillo

 

flag-arizonaNATURE OF THE ACTION

 1. This action seeks a Declaratory Judgment that Senate Bill 1454 enacted by the Fifty-first Legislature, First Regular Session 2013 (“SB 1454”) is unconstitutional because it violates Article 4, pt. 2 §13 of the Arizona Constitution,

 PARTIES

 2. Plaintiff George K. Staropoli is a citizen of the State of Arizona. Mr. Staropoli is an activist who advocates on behalf of homeowners on issues and legislation involving homeowner associations (HOAs).

 

Read the complaint here . . .

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

That SB 1454 violates the Constitution
That SB 1454 violates the Constitution

The following is an excerpt from my letter to Arizona Governor Brewer concerning her signing of a bill that had HOA amendments added.

 Dear Governor Brewer:

I wish to bring to your attention, as well as to the attention of other appropriate state persons, that on this past June 20th you signed SB 1454 (CH. 254) into law unknowing, due to the heated pressures of the budget and Medicare issues, that the bill violates the Arizona Constitution requiring “but one subject to be embraced in the title. The Constitution further states  any reference to provisions not contained in the title of the bill are invalid.  SB 1454 is titled, “campaign finance; in-kind contributions; disclosures, but contains the same provisions as found in the failed House bill, HB 2371, sponsored by Rep. Michelle Ugenti, dealing with HOA reforms.

Read the complete letter at SB1454