Tag: constitution

AZ legislature fails to remove invalid statutes from its ARS web page

“Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”[1]

While the SB 1454/HB 2371 redux bills SB 1482 and HB 2695 appear to be dead this session, there is still no bill to repeal the amended statutes in Sess. L. Ch. 254 (2013);[2] those declared unconstitutional and invalid by the Arizona court, and agreed to in a settlement agreement with the Arizona Legislature.[3] The Legislature is intentionally misleading the public as to the legitimacy of the Arizona Revised Statutes in what appears to be a slap at the separation of powers doctrine – we will ignore the ruling of the court.

The following was sent to the Arizona legislative leaders (March 19, 2014 email).

“Dear Legislators,

 “I cannot understand why the SB 1454 statutes declared invalid, and agreed to in a settlement agreement, are not being repealed?  ARS show them as valid laws, without any annotation, which misrepresents their validity to the public.

 “I cannot understand why the HOA HB 2371 redux bills this year, HB 2695 and SB 1482, provide for their repeal contingent on the passing of these omnibus bills?  There is no ‘standalone’ bill to set the record straight.   These invalid statutes cannot remain on the books for another year!”

 

The following was sent to Secretary of State Bennett.  (March 21, 2014 SOS form).

 “Sess. Laws Ch. 254 (2013) was declared unconstitutional in court and certain statutes were found to be invalid. See Staropoli v. State of AZ, CV2013-009991.  An agreement with the AG representing the Legislature was signed and accepted by the court.

“Yet Ch. 254 shows the invalid statutes and there is no annotation that certain statutes are invalid. THIS MISLEADS THE GENERAL PUBLIC!

 “I believe Session Laws and ARS must be corrected to reflect the true status of the statutes.”

 

In HOA SB 1454 progeny: passing SB 1482/HB 2695 would be an act of tyranny by the AZ Legislature (February 25, 2014), I wrote:

“No choice to repeal statutes found unconstitutional

“These statutes were declared unconstitutional by agreement with the AG, representing the Legislature, and an order by the court accepting the settlement agreement.  However, the Arizona Revised Statutes (ARS) still shows these statutes as if they were valid and enforceable laws, which is deceptive to the public accessing the official Legislature’s website, ALIS. There are no annotations to advise the public otherwise.

“The repeal of these unconstitutional statutes is conditioned upon bill approval. A failure to pass both bills will still leave these statutes on the books. There is no stand-alone bill that repeals these unconstitutional statutes as would be expected by a legitimate legislature acting with integrity as representatives of the people, and not as representatives of the special interests. Apparently the defiant eight-hundred pound gorilla, the special interest HOA stakeholders (CAI, AAR, AACM and AHBA),  has flexed its muscle, and the sponsors have reacted accordingly.”

This is incredulous! It is unthinkable that legislative leaders would succumb to the shadow government of the HOA stakeholder special interests, and openly mislead and misinform the public! Furthermore, after being given sufficient notice, the failure to correct ARS can only be viewed as intentional.

What other rational explanation can there be? Perhaps the participating legislator – special interest organization ALEC (American Legislative Exchange Council) was involved? People for the American Way[4] describes ALEC as,

The American Legislative Exchange Council, is a one-stop shop for corporations looking to identify and cultivate friendly state legislators and then work with them to get special-interest legislation introduced and passed.

The American Legislative Exchange Council, serves as a voice for corporate special interests in state legislatures across the country. Its corporate executives, lawyers and lobbyists, along with member legislators, draft, lobby for, and secure passage of a wide array of bills designed to promote corporate interests.

For more information about ALEC see United States of ALEC. (Bill Moyers 30 minute video in 2012 on ALEC. AZ is right up front.)

References

[1] W. B. Allen, “Machiavelli and Modernity,” The Prince, Niccolo Machiavelli, p. 108.

[2] http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/51leg/1R/laws/0254.htm&Session_ID=110.

[3] http://pvtgov.org/pvtgov/downloads/order-final.pdf.

[4] http://www.pfaw.org/media-center/publications/alec-arizona-voice-corporate-special-interests-halls-arizonas-legislature.

Defending the Constitution: VA, yes; AZ, no

With the removal of the statutory imposed right of an HOA to fine members from Virginia’s  HB 791, the VA legislature demonstrated that it stood behind the separation of powers doctrine of the US and VA constitutions.

I had written VA Rep. Suorvell and Senator Petersen, who opposed the bill as it was written, about the Virginia Supreme Court’s findings in Gillman v. Unit Owners, which said HOA fines were unconstitutional.

In Gillman the Virginia Supreme Court held,

We do not agree that it was ever the intent of the General Assembly of Virginia that the owners of units in a condominium be a completely autonomous body, or that such would be permitted under the federal and state constitutions. Admittedly, the Act is designed to and does permit the exercise of wide powers by an association of unit owners. However, these powers are limited by general law and by the Condominium Act itself.

The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment. . . . We think it clear that the Gillmans were being punished, not assessed, and hold the action of the Association to have been impermissible.

 And very importantly from a constitutional point of view (my emphasis), “A condominium restriction or limitation, reasonably related to a legitimate purpose, does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.”

Sadly, the Arizona Legislature is still trying to pass for a 4th and 5th time (two versions of last year’s trice defeated HB 2371/SB 1454).  It would allow unlicensed and untrained HOA property managers to represent HOAs in small claims court and in administrative hearings;  but not allow the homeowner a third-party representative, violating the equal application of the laws and no special laws for special groups provisions of the US and AZ  constitutions.

What is the legitimate AZ government purpose to selectively deny homeowner equal representation?  Does it reasonably promote good public policy?

Decl. of Indep. from HOA government

In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th and submitted a statement titled, “HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. and informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens a Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors.

This statement was referenced in Robert Nelson’s 2005 highbrow book, Private Neighborhoods (p. 342). He covered a lot of material including HOA secession from local government and on constitutions (Part V, “Creating HOA Constitutions”).

The purpose of a constitution is to set the ground rules for governance. . . . Yes the rise of the private neighborhood has resulted in far and away the largest number of new constitutions in recent years. [Is he referring to HOA principalities?] . . . . [T]he real estate lawyers and their developer clients . . . with no previous experience available to understand what the pros and cons would be to live in a community controlled by covenants, [governing documents] were born.

In HOACommon Sense: rejecting private government I outlined 5 broad categories to be addressed by reform legislation.

Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better.

tyranny of the AZ Senate: SB 1482 as SB 1454 redux

Yesterday I noticed that ARS shows the statutes as in Ch. 254 (SB 1454) that includes those found unconstitutional.  This is misleading to the average person as there is no annotation that the court ruled certain statutes unconstitutional.

The status of these unconstitutional statutes must be brought to the attention of the court if an attempt is made to enforce any of them.

I can understand the need to formally remove these statutes by repealing them through the legislative process. But, until and if then, keeping them on ALIS with no annotation on the official records is mind boggling.  The repeal is taking place within SB 1482, and the statutes are being replaced by almost exactly the same laws now shown in ARS.  What’s the point?  This is a win-win – pass the bill and minor changes to SB 1454 take place, kill the bill and the unconstitutional changes remain.

I believe it only proper that an annotation be placed in ALIS to alert the public as to the facts, and a separate bill filed that deals solely with the repeal of the unconstitutional statutes in SB 1454 in the event SB 1482 or a House version fails.  This repeal bill should have been introduced at the start of the session, as “unfinished business,” and passed without delay. To allow unconstitutional laws to remain on the books is unconscionable.

Please call this sorrowful state of affairs to the attention of your media contacts ASAP!

AZ’s ominous SB 1482: the return of unconstitutional SB 1454

As last year’s sponsor of the unconstitutional SB 1454 amendments, Rep. Ugenti, vowed to reintroduce the bill. The reincarnation of her trice failed bill is now the omnibus SB 1482.  It’s really her HB 2371 that had twice failed and she attempted to get it passed as part of Sen. Griffins’ SB 1454. (see AZ Attorney General admits SB 1454 HOA to be invalid and without effect).

As an omnibus bill it contains the 5 separate topics relating to HOAs, which make it an omnibus bill. They are: planning board prohibitions on requiring HOAs; permitting the display of political signs, regulations on renter rights and protections, and permitting unlicensed and untrained HOA managers to represent HOAs in small claims court and before administrative hearings.

Some say that omnibus bills help legislators better understand broad changes in the subject of the bill.  But, are the above mentioned 5 topics really related to make a better understanding of the broad changes? No, not all. They are just separate changes, separate bills, thrown together for a reason. And that reason, as attorney Tim Hogan pointed out last year, is to get bills that could not stand and get passed on their own lumped together to obtain sufficient support by giving something to every supporter. It also involves accepting changes to the law that are of no interest to or concern of the supporter. These other changes are an “I don’t care” attitude.  So omnibus bills become law based on “I don’t care” how these non-interest changes affect others.

For example, what has planning boards got to do with better understanding the need for HOA managers to represent HOAS?  Nothing!  It’s an evil, an undemocratic mechanism to get support for unwanted bills. “Because of their large size and scope, omnibus bills limit opportunities for debate and scrutiny. Historically, omnibus bills have been used to pass controversial amendments. For this reason, some consider omnibus bills to be anti-democratic.” (http://en.wikipedia.org/wiki/Omnibus_bill). It forces an all or nothing choice.

Remember that it was Sen. Griffin, now the lead sponsor of SB 1482, who allowed her bill to be amended by Rep. Ugenti last year.  Apparently she was rewarded with the President Pro Tem position in the Senate.  And, Rep. Ugenti will get to hear the bill, if passed by the Senate, as she is Chair of the House Government committee.

Here we go again!  Kill the bill for a fourth time and force the legislature to introduce separate bills to allow a vote of one’s conscience and not an “I don’t care” vote.