Tag: constitution

The public policy of the states with respect to HOAs

In order to understand what this Commentary is addressing, here is a general definition of “public policy.” First, “public interest” refers to the “common well-being” or “general welfare.” “Public policy” is generally defined as,

A principle that no person or government official can legally perform an act that tends to injure the public.

Public policy manifests the common sense and common conscience of the citizens as a whole that extends throughout the state and is applied to matters of public health, safety, and welfare. It is general, well-settled public opinion relating to the duties of citizens to their fellow citizens. Public policy enters into, and influences, the enactment, execution, and interpretation of legislation.

Yet, with respect to HOAs we find that, over the years and in almost every state, the acts and actions, the absence of acts and actions, and the statements and communications by state legislators, government officials and court decisions have created a pro-HOA public policy. I summarized this policy as,

The Public Policy of the states with respect to Homeowners Associations.

1. To protect and defend the HOA;

2. That “you are on your own,” and not inform those now living in HOAs, or about to buy into an HOA, that they will not be protected by the state against HOA wrongs and that HOA violations will go unpunished;

3. To allow HOAs to violate contractual provisions and state laws, as such lawlessness does not constitute an issue of public interest warranting state involvement and protection;

4. To ensure the survival of the HOA, even if it requires the denial of rights and freedoms enjoyed by those not living in HOAs;

5. To protect and defend HOAs as if they were necessary for the security of the state, warranting the suspension of constitutional protections.

Was I wrong in 2006 about CAI and HOA independence?

My research into the historical role of CAI can be found in the 2008 The Foundations of Homeowners Associations and the New America, “Part II, The National Lobbyist for HOA Principalities.”  Part II is subtitled, “Community Associations Institute: Dominating the Emergence and Acceptance in America of a Quiet Political Revolution in Authoritarian, Contractual Private Local Government.”   It was primarily based on the 2005 book, Community Associations, partially funded by CAI and ULI and written by Donald R. Stabile. 

I concluded Part II with,

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments.  In effect, the super, privatized agency to replace the US Constitutional system of government.

This was written back in 2006, before the 2008 revision to an eBook and the 2010 addition of Part III. 

The subsequent acts and actions by CAI include the behind the scenes support for imposing and promoting   the top-down, “one law fits all,” UCIOA laws for adoption by the states.  Its subsequent acts and actions also include positions taken before state legislatures over the years that support and reinforce the denial of due process and the equal application of the laws for HOA members.  And there is CAI’s performance as presented in CAI continues to ignore the Constitution for the HOA constitution that clearly makes the case for CAI’s rejection of and secession from Constitutional government.

Some may call such behavior, seditious.

I don’t think I got it wrong.   

Reference

Seditious:  “Given to or guilty of engaging in or promoting sedition.”

Sedition:  “Conduct or language inciting rebellion against the authority of a state.”  

CAI continues to ignore the Constitution for the HOA constitution

CAI continues its stand against HOAs being held to the US and state constitutions.  This is a second case, the first being CBTR v. Twin Rivers, 929 A.2d 1060 (2007). Sort of an argument for secession to an independent principality status where all residents would be regarded as “expats” (expatriates).

In the Twin Rivers case, the CAI amicus brief to the NJ appellate court warned about “the unwise extension of constitutional rights to the use of private property by members [in HOAs].”

Here’s what CAI had to say in this more recent NJ case, 4 years later. Note that it’s a “putative” brief. Aside for being paid by a party, not indicated here, a putative amicus brief can bring up arguments not raised by the parties for the “edification” of the court. This appears to be CAI – NJ’s position.

Excerpts from the “Putative Amicus Curiae Brief” by CAI – NJ to NJ Supreme Court, July 27, 2011

Whatever rights common interest association members have to express themselves regarding association issues arise not from the State Constitution but rather from statute, from contractual provisions of the association’s governing documents, from the fiduciary duty owed by the association trustees, and from concepts of fundamental fairness.

The ability of members to communicate with each other thus may be said to be an implied covenant in the By-Laws, a fiduciary obligation of the organization, and/or due to fundamental fairness to enable members to participate in community affairs and governance.

A governing board’s regulations are enforceable only if they satisfy the business judgment rule, that is, they are authorized by statute or the governing documents and the board’s action is not fraudulent, self-dealing or unconscionable. [citing Twin Rivers].

Because the unit owners have other statutory, contractual and legal remedies to protect them from overreaching by the Association, there is no need to apply the constitutional free speech clause. For that reason as well, the appellate majority opinion should be reversed.

Mazdabrook Commons v. Kahn, No. 67,094, (NJ 2011) (Not yet decided).

In other words, who needs the Constitution? We have our top-down, business profiteer’s CC&Rs private contract, and laws that mimic and are almost identical to the CC&Rs. Who needs the NJ Constitution, too.

See Twin Rivers and NJ HOA free speech rights, redux.

AZ House supports HOA dominance over municipalities

In an unbelievable acquiescence to the secession of legitimate public government control to private government HOAs, this bill, SB 1113, regulating public streets within HOA subdivisions,  was soundly rejected by the House Judicial Committee. Welcome to the New America of HOA-Land brought to you by your elected representatives who take an oath to uphold the Arizona and US Constitutions.  The bill was defeated 2 – 6.

The only worthwhile commentary was from the Chair, Rep. Eddie Farnsworth, who concluded with, “I find it disturbing that this committee rejected this bill because the police says its too difficult to enforce.”  Nationally known Sheriff Joe Arpaio was against the bill.  Farnworth also remarked that the political realities of the 2,000 member exclusion amendment was needed because of the “highly paid lobbyists like the one you see before you,” referring to CAI lobbyist DeMenna.

And still, there are those who truly believe that the Constitution is only about the absolute right of HOAs to write contracts that supersede the Constitution.

I am continually amazed that some legislators still use this as an excuse to stop bills that seek to reign in lawless conduct by HOA boards.   Legislators who do not want to hold boards accountable under the laws of the land are condoning HOAs as above the laws of Arizona, above the Arizona and US Constitutions.  Surely they must realize this.  Surely they do not realize the consequences of this unexplainable position on HOAs.

The failure of the Judiciary Committee to pass this very important bill to prevent private entities from usurping legitimate government functions is very disturbing.  The purpose of a committee is to recommend a bill for the entire body to consider, and not to kill such an important bill and thereby not giving all the elected representatives  their due voice.   This is politics under the influence of special interests.

If the HOA boards and officers refuse to join our democratic society, then they should be allowed to fail!  It is unconscionable to do otherwise!  If this is too much for some people, that their “free ride” is over, well, then they can just move out!

Once, long ago, America had people of character, of integrity and of honor.  Now, it’s just “what’s in it for me” and “how will it affect my legacy” — self-centered concern about themselves and not about their responbilities and duties as public servants for the people.  The people have the right to expect that their elected representatives would protect their rights and freedoms under the Constitution, and not to support the unconstitutional delegation of legislative powers to private entities.

The legislature does no wrong when enacting HOA laws, or does it?

Where have you gone, Joe DiMaggio

A nation turns its lonely eyes to you.

What’s that you say, Mrs. Robinson

Joltin’ Joe has left and gone away.

(Hey, hey, hey . . . hey, hey, hey)

 

(from the song, Mrs. Robinson, Simon & Garfunkel, 1967)

Franklin Delano Roosevelt recognized that a country in crisis needs to confront the illusions that led it astray and return to the values that can form a firmer foundation.

(Rediscovering Values On Wall Street, Main Street and Your Street, Jim Wallis, 2010)

 

As many state legislatures are now dealing with HOA reform legislation, I examine the question of unconstitutional bills being made law, and the failure of legislators to understand their acts under the “due process of law” restrictions of the 5th and 14th Amendments.  Essentially, the legislature cannot enact laws that favor one group over another without an explicit, valid justification for such laws. The legislature must cease protecting HOAs at the expense of the rights and freedoms of its citizens who live under these regimes.

Looking at our current condition in every state with HOA “Acts”, we must understand that, conforming to the historical pattern for civilizations and nations, the US is on the downside of its “life-cycle.”   The people, and their elected representatives, have forgotten its reasons-for-being — the values, principles and beliefs that founded this experiment in representative democracy.   We have become a nation under the rule of man, not law, as well demonstrated by  our concern for who gets  to be the next US Supreme Court Justice, the next person to determine and to make law.

As formerly held with respect to kings and emperors of long along, we have returned to the notion that the legislature can do no wrong and is above reproach, as well demonstrated by the legal doctrine that all laws are presumed to be constitutional.  The oversight by the courts is a myth in reality, because a strong burden is placed on the people to prove beyond a doubt that the law violates the Constitution.   And the legislative Rules committees that are obligated to check the constitutionality of a bill is also a myth.  In short, we have returned to “The sovereign can do no wrong.”

Due Process of Law constraints

However, the fundamental due process of law obligations set forth in the Constitution do impose restrictions on legislative free-wheeling law making.  Essentially, “due process of law” requires not only proper procedures be followed, but the law at issue must be valid and legitimate.  To enforce a law solely as to the procedural processes would make a mockery of legitimate government, if the law to be enforced is unconstitutional itself.  This point is made quite clearly and empathetically by Timothy Sandefur (Harvard Journal of Law & Public Policy, Winter 2012, p. 337),

“One can easily imagine such a legislature enacting a statute vesting lynch mobs . . . to adjudicate and punish perceived wrongs . . . or a statute assigning automatic death penalty for such vague ‘crimes’ as being ‘uppity.’”

For those readers who believe that this statement is wholly unbelievable and unreal, it is quite close to what is occurring with HOA statutes across the country. They easily amount to special laws for special groups without a legitimate government justification and interest.  Justifications that would pass the requisite judicial scrutiny other than just “a reasonable government interest.” (The silence by the legislatures and government officials as to a legitimate government interest for HOA laws only confirms the lack of any valid justification. See Rights of Man, Thomas Paine.)

Legitimate Law Making

What then, does due process of law impose on the legitimacy  of legislature lawmaking?  Sundefur argues that, “The Due Process Clause was written to ensure that government does not act without reasons, nor for insufficient, corrupt or illusory reasons.”  (p. 287); “This obligates the government to act in a lawful manner.” (p. 290).  He defines a lawful act as “a use of the state’s coercive powers in the service of some general rule that realistically serves a public, not a private end” (my emphasis), and is “a prohibition against government acting in an arbitrary way.” 

In other words, where there is no rational purpose or explanation for the law, as we see with many HOA laws, the law is not legitimate.

“Legislation that singles out a particular business . . . for no legitimate reason or uses irrelevant distinctions as an excuse for treating people differently . . . exercises government power in an arbitrary way.” (p.308).

We are well aware that many statutes deny homeowners rights that they would otherwise enjoy if they were living outside the HOA regime.  (I will skip the arguments concerning a valid contract under contract law, the lack of genuine consent, and the superiority of servitudes law over constitutional and contract laws that allows for the surrender of rights and freedoms under these conditions.)  We know that many HOA statutes can be seen as punitive, such as foreclosure rights; fines without proper due process; granting of “open” liens; allowing HOA fines to accumulate while adjudication of a dispute begins or is occurring; and the mandate that assessments be paid regardless of any dispute with the HOA.

 Sandefur argues that statutes of this type that “burden a group for no other reason than that the victims exercise too little political influence to defend themselves . . . are more like  punishments than law,” and maintains that “Legislation of this sort is arbitrary, based on no other principle except the ipse dixit of force.”  That is, Sandefur is saying, by the mere pronouncement or enactment by the legislature without any justification of supporting arguments – an ipse dixit – the legislature is commanding obedience to the law.

 

If angels were to govern men

Allow me to address the question of why. Why is this happening, especially with HOA statutes?  First, we have forgotten that the structuring of government was based on the realities of human nature, and not on some idealized standard of behavior that the people must strive to attain.  (This level of behavior, for example, would be the unrealistic demand that if HOA members would only get involved in HOA government all problems would go away.)

Second, as Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.”   The “presumption of constitutionality” doctrine stands in contradiction to the realities of this country and the structuring of government.  It allows the legislators, like HOA boards, to be unaccountable for their acts in passing all sorts of laws without regard to the restrictions of the due process of laws clause.   It is just another example of Sandefur’s argument that ipse dixit laws go unchecked because the people have too little political influence. 

As an aside, as I now write,  Arizona’s HCR 2104 would require every bill  to state the authority under the Arizona Constitution that would  allow this legislative action.  Sadly though, the bill was not meant to go anywhere as it is a “vehicle” or placeholder bill.  It has been sitting, not even heard, in the Judiciary  Committee, and the session ends in April.

And the worst due process of law offense of all is for the legislatures and courts to stand aside and allow these de facto, authoritarian governments to exist outside the social contract known as the Constitution of the United States of America.