I found the following resolution by the Arizona Legislature to re-affirm its sovereignty over Arizona personnel and its right to serve as a check and balance on the Federal government very intriguing. I keep thinking about why the “Sovereign of Arizona” believes checks and balances are not needed with respect to the independent, private governments known as HOAs, to which it has given its active support and cooperation.
Apparently, this concern for government checks and balances has been found not necessary when it comes to HOA governments. Apparently, obedience to the Arizona and US Constitutions with respect to due process protections and the equal protection of the laws for citizens living within these regimes has been found not necessary. It seems that the warnings of James Madison in The Federalist Papers, #51 have been ignored: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”. Somehow average people become angels who can do no wrong when they become an HOA board member.
I would think that the citizens of Arizona do indeed need the long arm of the Federal government to serve as a check and balance since Arizona, and all other state governments, has failed to standby and to uphold the US Constitution. I think it is probably necessary for the Federal government to commandeer and nationalize Arizona personnel who participate in violating the US Constitution.
proposing an amendment to the Constitution of Arizona; amending article II, section 3, Constitution of Arizona; relating to the rejection of unconstitutional federal actions.
Be it resolved by the Senate of the State of Arizona, the House of Representatives concurring:
1. Article II, section 3, Constitution of Arizona, is proposed to be amended as follows if approved by the voters and on proclamation of the Governor:
3. Supreme law of the land; authority to exercise sovereign authority against federal action; use of government personnel and financial resources
Section 3. A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.
B. To protect the people’s freedom and to preserve the checks and balances of the United States Constitution, this state may exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the constitution by doing any of the following:
1. Passing an initiative or referendum pursuant to Article IV, part 1, section 1.
2. Passing a bill pursuant to Article IV, part 2 and article V, section 7.
3. Pursuing any other available legal remedy.
C. If the people or their representatives exercise their authority pursuant to this section, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.
2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.
An interesting federal case came to my attention that involved public access to public roads. In this Puerto Rican case, Watchtower Bible [Jehovah Witnesses] v. Municipality of Santa of Isabel, CIV. NO. 04-1452 (2013), the First Circuit overturned the District Court’s decision and held that the Jehovah Witnesses’ free speech rights were violated. This case was the remand from the First Circuit in Watchtower Bible v. Sagardia de Jesus, 634 F.3d 3 (2011)).
Shades of Marsh v. Alabama (326 U.S. 501), that 1946 federal case where Jehovah Witnesses attempted to distribute literature in a company town with public access. WOW! (Cited in Sagardia de Jesus). Marsh led to the US Supreme Court’s “public functions” test to determine if private organizations were state actors. (Today, there are other tests for HOA state action that nobody seems willing to pursue).
The municipality operated a Public Housing Agency, similar to the “projects” build in the 1950s in Chicago and New York City. Where there are unmanned gates (“unmanned urbanizations”), entry to the public road is based upon acceptance by a resident who answers a buzzer or gets a call from the visitor. However, Puerto Rico has explicit laws that require all roads to be public roads open to all the people, with the usual police powers exceptions for the health and safety of the residents. Like criminals don’t get access, etc.
In dealing with the remand, to tighten the rules in accordance with the laws, the court noted that,
If access to public streets can be denied to them, then access can be denied to anyone. For example . . . the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case.
The court made the following general statement that has direct application to private government HOA regimes (my emphasis),
Even today, many nations of the world inadequately protect, or worse, fail to protect, these rights that we often take for granted. This case demonstrates this Nation’s deep history of protecting civil liberties. Any antipathy by individual residents of gated communities towards Jehovah’s Witnesses or members of any other religious faith should yield to common sense and respect for the Rule of Law, product of the United States and Puerto Rico Constitutions.
[Please note that a previous post on this bill, SB 1278, was posted in error, referring to restrictions on mandating HOAs in new subdivisions. An Arizona bill, SB 2292, that would have made this a law has been stalled in the Legislature and will die there.]
Arizona Session Law Ch. 103 (2013), SB 1278, reaffirms local municipality control of public streets within an HOA. It is a groundbreaking bill because it relegates HOA private governments to a rightful secondary status and subject to public government laws. In a disgraceful rejection of the Constitution, courts see no problem with upholding the common law Restatement of Property (Servitudes) as controlling over Constitutional and contract law.
It’s a simply worded bill:
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 33, chapter 16, article 1, Arizona Revised Statutes, is amended by adding section 33-1818, to read:
33-1818. Community authority over public roadways: Applicability
A. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS, AFTER THE PERIOD OF DECLARANT CONTROL, AN ASSOCIATION HAS NO AUTHORITY OVER AND SHALL NOT REGULATE ANY ROADWAY FOR WHICH THE OWNERSHIP HAS BEEN DEDICATED TO OR IS OTHERWISE HELD BY A GOVERNMENTAL ENTITY.
B. THIS SECTION APPLIES ONLY TO THOSE PLANNED COMMUNITIES FOR WHICH THE DECLARATION IS RECORDED AFTER DECEMBER 31, 2014.
While homeowners must wait until 2015, this bill is a giant step forward to curtail the unconsitutional reach of private regimes where homeowners are outside the protections of the US and Arizona Constitutions. It speaks to putting a clamp on The New America of HOA-Land. The bill took 5 years of dedicated effort by HOA champion and State Senator Nancy Barto before it became law.
HOAs had raised feeble arguments that could and still can be easily addressed by seeking ordinance variances. The HOAs and their hired-hand venders have refused to avail themselves of this avenue of redress, which is available to all citizens. No, this 4 year long battle was a battle for power and control. Which form of government controls your public streets, the municipality of the HOA regime?
A review of new legislation being considered in many state legislatures clearly shows a growing trend toward justice and fair play for homeowners. Substantive HOA reform bills can be found in Arizona, Colorado, Florida, North Carolina and Texas to name those are known to me.
Arizona.
SB 2292 seeks to end mandatory HOAs for new subdivisions.
SB 1278 reasserts local municipality control of public streets in HOAs.
Colorado. HB 1276 seeks to restrict HOA foreclosures by setting forth strict procedures for HOAs to follow if they seek to foreclose on a homeowner that include restrictions on the sue of collection agencies, the adoption of a formal payment plan, notice to delinquent homeowners stating the exact amounts owed, and the procedures to resolve issue before any action can be taken..
Florida.
SB580 places restrictions on management firms.
SB 596 creates a powerful, bona fide state agency to regulate HOAs and that can make rules, to investigate complaints and to seek penalties and restitution in civil court.
North Carolina. HB 175 is another foreclosure reform bill that prohibits assessment foreclosure, but allows HOAs to obtain court judgments for the assessments owed. It requires a notice of a claim of lien to be served on the homeowner before any action can be taken.
Texas. HB 3803 seeks state oversight by allowing the attorney general investigation of financial wrong-doing by the HOA, with penalties.
Much, much more legislation dealing with substantive HOA reforms is needed. This legislation would deal with fair and just due process procedures in HOA disputes, foreclosure reforms, clean elections procedures, meaningful enforcement against HOA violators, and ending the “consent to agree” misrepresentation in the sale of a home in a HOA.
This video covers the Arizona Senate GE committee hearing on a bill that would allow unlicensed HOA managers to represent HOAs. It shows the AZ legislature abdicating and supporting HOA-Land rule over democratic rule, and over the Constitution. It shows a banana republic, “I see no problems,” mentality.
Here are my comments at several points in the video.
My opening statement
Hi, I’m George Staropoli, also known on the internet as HOAGOV. I am once again, reluctantly, before the camera with another HOA legislative documentary. My material comes from events at the Arizona Legislature, and from the legislators themselves.
Viewers will be alerted to the following comments at appropriate points in the video. They are provided to assist you in understanding of what’s really going on. With this in mind, I strongly recommend that you take time to read my HB 2371 Commentary (on this date) on my website before continuing — the link is now being shown.
This video will also be posted to my HOA Constitutional Government website along with my detailed comments — the link is on the screen.
Let’s view the hearing . . .
Opening comments by Ugenti:
You just witnessed the sponsor’s “opening statement.” Note her motive for the bill: Let me quote her, “Every year there is a plethora (many, many) of personal HOA legislation . . . as well as industry HOA legislation.” She stated that she combined all those bills “working through a stakeholder process and allowing the stakeholder process to filter the proposed legislation . . . representing a consensus from the AZ realtors, and AACM (AZ Association of Community Managers, the beneficiary of this bill).” She further added “to spare the members from the agony of voting up or down on personal pieces of legislation.”
Now, what was she saying? First the “personal” bills come from homeowners while the other legislation is “HOA industry legislation.” She put the bills through a stakeholder process and used the process to filter the bills. She failed to say, however, that no homeowner advocates participated in this stakeholder filtering process, which was brought to light in her House GOV testimony, and not denied.
Ugenti said nothing about fixing HOA problems and making HOAs better for everyone, especially the real stakeholders — the homeowners. Not even entertaining an amendment to address issues of substance relating to constitutionality, fair and just laws, and of other homeowner concerns as emailed to her.
Now let me explain that in her earlier statement to the House GOV committee, she also said that she wanted to avoid any controversial bills. But, think about it. If there is serious opposition, based on authoritative sources, wouldn’t that that create a controversy? So, her choice was to deny any opposing views, and only pick the special interest agenda – the stakeholder agenda. Isn’t Ugenti failing to understand that these problems are not singular or personal to just one homeowner? I mean, after hearing more of the same from others and the media, you would think she could take a hint! Apparently not!
Homeowners appear to have been given short rift, and have been placed “at the bottom of the food chain,” defenseless and being gobbled up by everyone else. And here I thought our representatives are supposed to represent the people, not the moneyed special interests.
Art. II, Sect. 2, of the AZ Constitution states, “Governments . . . are established to protect and maintain individual rights.” Did I miss something?
Furthermore, in an outright act of favoritism toward the special interests, as shown in the video, Ugenti asked for questions that she or the stakeholders can answer.
Let’s return to the video . . . .
Homeowner email:
Please understand what has happened in this staged scenario with this constituent email, which the legislators viewed as having a “personal issue” with her association — homeowner owners only bring personal problems while the special interests deal with non-personal agendas.
With the several email dealing with issues and problems of substance, why was the single email chosen for airing before the committee? Why? Because it serves to reinforce the sponsor’s false argument that homeowners only deal in personal issues, which justifies her leaving out the homeowners from serious, authoritative HOA industry specialists! There was no mention of the non-personal, substantive constitutional issues brought to the attention of the legislators in my emails and commentary, or in two other homeowner advocate emails that I have personal knowledge. Nothing! Silence! Not a word!
The legislators “hear no evil, see no evil, and speak no evil.”
Let’s return to the video . . .
Conclusion
You have now witnessed another episode of “the unspoken alliance of no negatives about HOAs.” Did you hear any of the objections that were emailed to the committee? NO! You did not hear that the bill would allow unlicensed HOA property managers to represent HOAs in small claims court, or before an administrative law judge at the Office of Administrative Hearings? Did you know that even licensed paralegals are not allowed to represent others? Did you know that the current law applies to all hearings from all agencies before OAH?
Don’t tell me that the legislators, AACM, CAI, or the sponsor of HB 2371 don’t know about the 2012 AZ Supreme Court opinion on HOA managers engaged in the unauthorized practice of law, and the decision against for numerous UPL violations against one CAI/AACM member? C’mon! The legislators were sent copies of these decisions. The viewers of the hearing video would not think any such events against unlicensed mangers had occurred. In court, hiding exculpatory evidence (evidence in favor of the defendant) is a crime! But, apparently it’s OK in the legislature.
And rather than do what is just, fair and reasonable, and that is to require proper licensing for managers if they are being allowed to represent HOAs, HB2371 is silent on education!
What we have here is a special law for special private entities, without even a whisper of any legitimate justification. The bill is an unconstitutional special law violating the AZ Constitution, ART II, section 13, which states, “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.” In other words, no special laws for special people are permitted.
Section 32 states, “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” Where are the “express words” in this bill to override the Constitution?
What you have witnessed is the homeowner, the real stakeholder, has been cut out from the legislative process. What we have here is legislative support, cooperation, entwinement, and a symbiotic relationship between the state and the HOA, thereby making good cause for HOAs to be declared arms of the state, or state actors, subject to the 14TH Amendment protections.
It must still pass the Rules committee and the final vote of the entire Senate before becoming law. Passing this bill into law would be unconscionable!
HOA Constitutional Government 