Tag: democracy

The continuing saga to quash HOA due process protections by the State of Arizona

 

On Feb. 11, 2009 my attempt to intervene in the Arizona Meritt superior court appeal of an DBFLS petition was denied. The Meritt complaint was based solely on the superior court decision in Waugaman, as no argument occurred in the Meritt default decision. I was required to file an Answer in defense of the statute to the HOA complaint that sought a declaration of unconstitutional adjudication of HOA disputes by DFBLS.

 

This denial was a surprising event given that Meritt was a default decision on a question of the constitutionality of a statute, and I had introduced the Attorney General’s brief in support of constitutionality from Waugaman in my Answer. In Waugaman, the AG’s brief was given a single line in the decision, a decision that quoted the HOA’s argument: “the Attorney General’s office fails to identify a single way in which the [Department] actually exerts regulatory authority over planned communities.” The focus was solely on whether or not the AG’s brief satisfactorily addressed the one issue of concern to the court, and to the HOA: the extent of regulatory authority. (For a clarification of the roles played by these cases, see my earlier comments on the Gelb petition at Will AZ Supreme Court do justice for 1 million HOA members? )

 

Filing as a Pro Per, this knowledgeable layman argued, among other things,

 

Here [HOA adjudication] there is a direct statutory adjudication authority and there is no need to divine legislative intent and tie it to an agency’s regulatory mission. The decision regarding constitutionality must therefore fall to the Bennett or four-fold test used in both Hancock and Cactus Wren. There is nothing in the Bennett test that considers proper regulatory authority per se. The requirement for adjudication as ancillary to proper regulatory authority is not a requirement of the Bennett four-fold test . . . . (¶ 10, p. 5).

 

In view of the facts in Hancock contained in paragraph 10, this fixation on regulatory authority is misplaced in view of the direct statutory authority to adjudicate contractual disputes in both the Act and planned communities. (¶ 11, p. 7).

 

This essential argument finding error with the Waugaman decision’s focus on the extent of regulatory authority (used as sole authority in Meritt, and essentially repeated in the Gelb appeal) is more elegantly presented in part 3 of the Nov. 30, 2010 Gelb Petition, “III. A.R.S. § 41-2198 is a Constitutional Delegation of Authority to An Administrative Agency and Does Not Violate the Separation of Powers Doctrine.” (p. 11). Gelb argued,

 

The Court of Appeals incorrectly determined § 41-2198(3) violated Article 3 of the Arizona Constitution because there was “no nexus between the regulatory authority or purpose of the DFBLS and the authority to regulate planned communities.” . . . Significantly, the word “nexus” does not appear in either decision. Nor does either case require “a nexus between the primary regulatory purpose of the [agency] and the adjudicatory authority granted in the Administrative Process” as stated in the Court of Appeals opinion.

 

Furthermore, in undertaking this analysis of the constitutional delegation of powers to an agency, the Gelb appellate court stated, “In applying these factors, we are mindful that duly enacted laws are entitled to a strong presumption of constitutionality and any doubts should be resolved in favor of upholding a statute against constitutional challenges.” Additional Petition arguments cited authority in support of a blending of functions, and agency adjudication as assisting the judiciary rather than usurping its powers as held in the Gelb opinion. These arguments attacked the court’s conclusion that the HOA had overcome “this strong presumption of constitutionality” of a statute.

 

Let us hope that the Arizona Supreme Court will hear this Petition and do justice on behalf of the people, an estimated 1 million plus Arizonans living in HOAs and condos.

Hear discussion of HOA Syndrome on OnTheCommons talk radio

I congratulate Shu Bartholomew, Host and Producer, and Dr. Gary Solomon on this week’s internet radio segment on the Real Living in HOAs.  A must hear segment!

Dr. Solomon has diagnosed a condition found among many residents living in an HOA — the HOA Syndrome. 

See

A legitimate and valid government: obedience in conscience

 

In 2004 I wrote about The Legitimacy of HOA Governance, quoting the writings of constitutional scholar Randy Barnett:i

 

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority . . . constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”. . . .”A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.

 

Barnett speaks of justice by explaining, “the founders’ view that ‘first come rights, and then comes the Constitution’. The rights that precede the formation of government they call ‘natural rights’ … For these are rights that the people possess before they form a government and therefore retain; they are not positive rights created by government.”

Natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within the rightful domain, other persons — including persons calling themselves government officials — should not interfere without a compelling justification.”

And, more directly relating to HOAs where homeowners are assumed to have given their unanimous consent to be governed by the HOA, Barnett wrote,

If there are some rights that cannot be waived or transferred even by the consent of the right-holders, then the unanimous consent regimes [including HOAs], to be legitimate, must offer procedural assurances that these inalienable rights have been protected.

In other words, these inalienable rights are independent of any form of government and that a legitimate government cannot take away or restricted. And this is why I cannot over emphasize the important of arguments based on fundamental principles of American government in our efforts to obtain justice. And this is our biggest problem in fighting HOA governance and its legitimacy over homeowners. This bypasses the important question of contractual consent.

These attitudes and beliefs on the legitimacy of laws and government, and the people’s obligation to obey in good conscience, are not new. They can be found dating back some 260 years in Emmerich de Vallet’s, The Law of Nations.i Exchanging the word “nation” with “homeowners association” would not affect the content of this treatise, except in areas pertaining to the objectives and goals of the HOA society — set forth in its declaration — as compared to a democratic constitution where the primary concern is the people and not the state.

Vattel wrote, “If the greater part of a free people . . are weary of liberty, and resolved to submit to the authority of a monarch,—those citizens . . . though obliged to suffer the majority to do as they please,—are under no obligation at all to submit to the new government . . . . “ (P. 48). In contrast to the HOA constitution, which by its very nature repudiates a democratic government of the people, by the people, for the people, democratic government’s primary concern is to provide for justice. “This obligation flows from the object proposed by uniting in civil society, and from the social compact itself.” Our own Preamble lists “establish justice” first among its objectives. And Vattel cautions, as advocates today ardently have repeatedly sought redress, “The best laws are useless, if they be not observed” and that “a penal sanction becomes necessary, to give the laws their full efficacy.”

In April of this year I wrote The legitimacy of HOA boards and state legislatures , continuing to quote the views of Barnett,

That [the homeowners’] acquiescence to obey these unjust [HOA] laws and covenants cannot be misconstrued and interpreted as having  consented in good conscience to have agreed with the laws or with the HOA’s governing documents.  

 

The vast majority of these HOA and condo statutes and “acts” do not measure up to qualify as legitimate laws.  Our public government, realizing that it cannot achieve a voluntary acceptance and willingness by homeowners to obey these laws in conscience,  must resort to repressive and punitive laws as found in any other dictatorship or banana republic, even those with a facade that the people have a right to vote.  These unjust laws mimic the private government “constitutions”, the governing documents of these planned communities, with their authoritarian HOA governments.

In our recent past, we have witnessed the Rule of Law drifting off into oblivion with increasing encroachments by the short-sighted Rule of Man. By Man who has been preoccupied and narrowly focused on his own personal agenda of “what’s in it for me”, his political legacy, his allegiance first and foremost to the objectives and dogmatic principles of his political party rather to the good of the country and his fellow man.

America has lost its direction and the reason for its being. It is a necessity at this time for all to recapture those reasons for being and to re-establish their rightful position in guiding the actions and decisions of our elected representatives. Only We the People can restore the lost America of our origins. And those who defend the HOA legal scheme, for whatever their perceived benefits, have chosen to accept an authoritarian regime and to have denied and renounced our democratic system of government.

As stated in the Law of Nations, the people who disagree with the majority’s preference for a democratic government, and who have a right to disagree and who prefer HOA governance — who find democratic laws as illegitimate to which they cannot be bound in good conscience — are the ones who should pick up and move, not the majority who still prefer democratic government: “they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.” To the bewilderment of many Americans, in our New America, this renunciation of and succession from American constitutional government is acceptable to all our branches of government: executive, judiciary, and legislative.

notes

i  Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton Univ. Press 2004).

ii The Law of Nations or, principles of the law of nature, applied to the conduct and affairs of nations and sovereigns, Emmerich de Vattel, 1758, (Joseph Chitty, ed., 1883), http://www.constitution.org/vattel/vattel-01.htm.

Is America a nation under the rule of law, or of men?

This Monday, November 29th, the Supreme Court is expected to decide whether or not it will accept the Petition on the issue of President Obama’s status as a citizen and to have validity qualified as a President of the US. (Kerchner, No. 10-446)i. The Petitioners make several arguments equally applicable to HOA principalities with respect to the failure of the courts to protect the citizens of this country under its constitutional duties and obligations. HOAs are allowed to supersede and circumvent the supreme law of the land and are treated as principalities independent of and not subject to the Constitution.

Is the Constitution a meaningful document, or just a piece of paper that only serves as a basis to debate exceptions to its application? In other commentaries, I have written that America is no longer under the rule of law, but of men, and those living in HOAs have suffered as a result of the deterioration of this once honorable and noble standard and ideal. The application of the Constitution, as required of all public governmental entities, to de facto private governments is not an issue to state legislatures and those public interest organizations. Such actions relegate the Constitution to a meaningless piece of paper, and men now rule the country following their beliefs, principles and self-interests as evident in many third-world countries.

In Twin Rivers, the NJ Supreme Court rejected constitutional protections of free speech for homeowners in HOAs in favor of the “business judgment rule.” In Arizona, the appellate court found no problem in preferring the corrupt HOA due process “hearings” over independent tribunals by an administrative hearings agency. In contrast, the Supreme Court opinion, in the Kelo eminent domain case, redefined “public use” to mean “public purpose”, and demonstrated a pro-active court and the influence of men, not law, on the American people. All such questions raise the question of, “Where stands the Constitution?”

The Kerchner Petition addressed the role of the judiciary in upholding the balance of powers under the Constitution by not deferring to the legislature to solve all issues. Kerchner argues for the courts to standby their obligations to maintain that balance of powers,

The constitutional issue also cannot be decided by the political parties and a voting majority. Our nation is ultimately guided by the Constitution and the rule of law, not by majority rule. Allowing the political parties and the voting majorities to decide constitutional issues would be tantamount to amending the Constitution without going through the amendment process prescribed by Article V of the Constitution and abandoning the basic principles of republican government. p.29.

The courts, after rejecting the application of constitutional protections, as in the above-mentioned cases, offered consolation to homeowners by informing them that the legislature can “correct” the laws. (As homeowners have been told by numerous state attorneys generals who have broad powers to act, but refuse to do so). How can the Congress or a legislature correct a law when that law has been has been relegated secondary status in accordance with the court’s opinion of what’s good for society? As well said in Kerchner above, majority vote cannot amend the Constitution, and to allow majority vote to override the Constitution makes it meaningless. The supreme law of the land must control, as explicitly stated in the Constitution, and not the rule of men. Get a new Supreme Court Justice and we can get new constitutional laws. Kerchner adds,

 

But what happens when Congress also refuses to perform its constitutional duty . . . ? Surely the Constitution would not leave someone like the petitioners without any remedy to protect the same rights which the Declaration of Independence and the Constitution recognize as their unalienable rights to life, liberty, and property. (See Marbury v. Madison, “where there is a right there is a remedy”).

. . . .

If neither Congress nor the Executive branches of government will give the petitioners that protection to which the Constitution entitles them, they should have access to the courts to be able to protect and vindicate their own rights to that protection. This right to access to the courts is more critical when both the executive and legislature are acting in concert to deprive the petitioners of their right to this protection. p. 30.

This is the sad state of affairs in America today, where the Constitution has been ignored by the courts and the legislatures in favor of private de facto HOA principalities that owe little allegiance or obedience to our system of government. Where public government in total approves of the homeowners association with its repudiation of our American system of government. Where men rule according to their particular beliefs, and those beliefs often hold the Constitution secondary to their personal agendas.

 

i  Kerchner v. Obama, II, No. 10-446, Petition for a Writ of Certiorari, Sept. 30, 2010.

America Revisited – My Country Was of Thee

America Revisited

 

My country was of thee.

Now with no liberty,

whose loss I sing.

Land where your freedom died

 Constitution aside

where HOAs reside,

profiteers bring.

 

Government by the few

Is Constitution through?

Sadly I cry.

My private property

is mine no longer free.

Accepted as it be,

freedom will die. 

 

Private contracts decide

writ by a few who hide.  

It cannot be.

Aristocrats control,

the people lost their soul

gave up their noble goal,

this do I see.

 

HOAs override

democracy they hide,

of this I sing.

Legislators  agree

no evil do they see.

From sea to shining sea,

let freedom ring.

                                

                                 George K. Staropoli

                      Oct. 21, 2010

 

 

 The national homeowner rights advocacy  patriotic  song.   Recite same as America (My Country Tis  of Thee).