Tag: constitution

path to HOA legislative reform victory

Include the following “fill-in [ ]” model as “Section 1” to all bills proposing HOA reform legislation:

Be it enacted by the Legislature of the State of [ ]:

Section 1. It is the policy of this state that notwithstanding any provision of [insert the appropriate planned community or condominium acts] to the contrary,  the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”

Continuity of Government (COG) and HOA-Land

Continuity of government (COG) is the principle of establishing defined procedures that allow a government to continue its essential operations in case of a catastrophic event.

It was intended to preserve the American form of representative government, continuity of federal authority aided law enforcement, ensured general safety, and protected the government from the illegal assumption of power by rival foreign powers or anti-government organizations. 

The COG Plan was only activated in the 9/11 crisis until Jan. 6th. According to George Stephanopoulos (The Situation Room), the White House Situation Room put the COG Plan into action on January 6, 2021.  President Trump watched TV and in Congress the Secret Service protected VP Pense from the crowd.

Undoubtedly because it was never anticipated, COG did not address the slow erosion of the Constitution and democratic values from within the country, as we see with the HOA-Land Nation within America.  HOA-Land describes the collection of HOAs throughout America as “HOA-Land.” It identifies HOA-Land as a nation within America based on its culture, beliefs commonality of contractual CC&Rs acting as their constitution.

AZ 1984 SC opinion ignored living constitution

The Arizona Supreme Court opinion in Planned Parenthood AZ v. Mayes (1984 law) is consistent with their predominant belief in Originalism. These Justices did not accept the view that the Constitution must adapt to society as exists today and be a Living  Constitution. This controversial issue was not discussed in its opinion.

Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism. Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.

Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written and not merely ignore it or reinterpret it to their liking.

Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.

The AZ opinion is a sharp contrast to recent US Supreme Court opinions over the past years:

  • Brown v. Board of Education (society has changed and separate but equal is unsupported; 1954)
  • Roe v. Wade, 1973, overturned 2022. (women have privacy rights to abortion)
  • Affordable Care Act (“Fans of judicial inventiveness will applaud once again,”2010)
  • Citizens United (corporation freedom of speech  and can fund campaigns; 2010)
  • Hobby Lobby (separation state and religious beliefs; contraceptives, 2014)

Understanding how the  courts form opinions; 1864 abortion decision

The surprising opinion by the AZ Supreme Court in the 1864 abortion law[1] is an excellent learning tool for HOA advocates on how opinions are reached. The Court went to length to explain the affected laws and how the courts, in general,  proceed to interpret the statutes upon which a case is based.

Here are some key take-away reasonings (emphasis added).

  • [T]he question presented is . . . whether the later statutes “repeal or otherwise limit” the earlier statute.
  • Clear and unequivocal language determines a statute’s meaning, reading each word, phrase, clause, and sentence in such a way to ensure no part of the statute is void or trivial.
  • This analytical approach is premised on foundational trust in legislative competency, and this Court “presume[s] that the legislature knows the existing laws when it enacts or modifies a statute.”
  • If the statutory language is ambiguous . . . we may use alternative methods of statutory construction, including examining the rule’s historical background, its spirit and purpose, and the effects and consequences of competing interpretations.
  • “A statute is not ambiguous merely because the parties disagree about its meaning,” it is ambiguous if the “meaning is not evident after examining the statute’s text as a whole or considering statutes relating to the same subject or general purpose.”

In my view the above “rules” allows the court to defend its opinion, sometimes evident that it was previously decided  no matter what.  “We will give him a fair trial before we hang him.”

As to the opinion itself, the Justices recite a series of legislative statutes and amendments on abortion rights over the years. In consideration of the above, please be patient and see what a court may have to deal with.

  • The federal 1864 statute applied to the Arizona Territory (1901) and adopted by the State of Arizona in 1913. In 1928 the AZ Legislature adopted statutes on abortion as a crime.  ARS §§13-211 to – 213.
  • In 1971 with Planned parent v. Marks the appellate court remanded back to the trial court that held the statutes were unconstitutional (1973). On appeal the statutes were considered constitutional. Subsequently, ROE was overturned.
  • The AZ statute was inconsistent with ROE, making the AZ statute unconstitutional once again and did not allow enforcement of the AZ law ARS 13-211. See Nelson). The Legislature did not repeal  ARS 13-211.
  • In 1977 the statute was recodified as §13-3603.
  • In June 2022, the Supreme Court overturned Roe, thereby eliminating the federal constitutional right to abortion and returning “the eliminating the federal constitutional right to abortion. (see Dobbs).
  • FINALLY, in 1973 we have the runner up to today’s opinion when AG Brnovich and Planned parenthood fought over what law applies. The Court held that the 1864 law was never nullified nor repealed by the AZ statutes.
  • The Court concluded: “We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603 . . . .”

Note 1. Planned Parenthood AZ v. Mayes, as AZ AG, No. CV-23-0005-PR (April 9, 2024).

HOA-Land Organic Laws

Organic Law is “the set of foundational laws or regulations, like those in a constitution or charter, which establish the essential framework of a government.” It is the fundamental basis of a government.

The U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (See US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi).

In contrast, The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA-Land. Together with their derivatives, as applied to HOA Declarations, they set the HOA’s  political tone and governing policies, which clearly rejects the US Constitution as the law of the land.

National defender of HOA-Land legal structure, Community Associations Institute, CAI, had this to say in its amicus curiae to the NJ appellate court in Twin Rivers (2006).

“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. [p. 19].”