Tag: government

Dysfunctional legislatures supporting de facto private HOA second governments

 

“Wherever the real power in a Government lies, there is the danger of oppression.”   James Madison.

In my prior commentaries[1] on Arizona’s constitutional question of “who controls public streets”, HB 2153, I spoke of “legitimate governments” and made it quite clear that a contractual, private de facto government — an HOA — cannot be held to be legitimate.   The homeowner associations government  is chartered not under the statutes and constitution that govern de jure, legitimate, public entities, but is chartered under corporation law. Where corporate law is applied in an uneven manner and subservient to the common laws of equitable servitudes.  And where servitude law has been upheld by the courts and recommended as the controlling body of law when in conflict with constitutional law. 

It appears my arguments, mainly borrowed from legal documents and constitutional scholars, against the private government HOA control of public streets has failed to bring legislative leaders to their senses.  Any actions not in support of, or failures to act in support of,  the supreme law of the land and the laws and Arizona Constitution does, in itself, raise questions of the legitimacy of our state government.  And of the consent and obedience in conscience to be bound by any such laws or “commands” of the legislature. In a very practical and real manner, it is a question of the legitimacy of the actions of the legislative leaders who are members of the majority party that controls the legislature in Arizona — the Republican Party. 

Constitutional scholar Randy Barnett speaks about legitimacy, consent to be governed, and obedience[2]: 

Only if it is legitimate can an existing constitutional system issue commands to the citizenry that bind individuals in conscience. Consent legitimates lawmaking only on the assumption that individuals have rights and there are things no person or group can do to them without violating their rights.  For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.

Though actual consent [100% consent of the governed] can justify restrictions on freedom, without actual consent [or majority rule], liberty must be strictly protected. In the absence of actual consent, a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just in this respect.

“If angels were to govern men, neither external nor internal controls on government would be necessary.”  James Madison.

For an unspoken reason, the Senate leadership appears set on withholding HB 2153 from a vote by the people’s representatives.  Having already passed the House, I cannot envision any justification for holding this bill, for this willingness to abdicate legislative powers and authorities to private, contractual organizations. Organizations whose “constitution” obtains it power over the people within the subdivision, not by constitutional law, but by the common law of equitable servitudes.  This failure to hold a vote in the GOV committee sends the message, “who needs the Constitution”?  It is a repudiation of the Constitution that legislators are obligated to uphold.  It reveals a dysfunctional legislature, as we witness on the national level in Congress, reflecting a divisive ideology as author Brownstein describes in The Second Civil War[3]: 

The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only in advancing ideas acceptable to their core supporters. . . . The political system now rewards ideology over pragmatism. . . . What’s unusual now is that the political system is more polarized than the country. Rather than reducing the level of conflict [the legislature] increases it.

 
The Constitution does not permit a second, private, form of political government in America!

Let HB 2153 be heard in the GOV committee, and passed on to the full Senate!

References

1.  In general, see  HOA Private Government (http://starman.com/HOAGOV).  See also, Guest Opinion,  Government of the people, by the people, for the HOA, William M. Brown (internet commentary).

2.  Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004).

3.  Ronald Brownstein, The Second Ciivl War: How Extreme Partisanship Has Paralyzed Washington and Polarized America (Penguin Books 2007).

 

 

Government of the people, by the people, for the HOA

 

The following email letter from Mr. Brown to the Arizona legislative leaders reflects his concern about democracy in America.  (For more information on this HOA bill, please see public streets: the battleground for private or public government control).   

hoa constitution
hoa constitution

My dear President Burns, Chairman Tibshraeny, Vice-Chairman Harper, Members of the Senate Government Institutions Committee, Senator Bunch, Representative Barto, Co-Sponsors of HB2153 and Representative Barnes:

“From time to time we read in the newspapers, or hear on the radio, about policies and procedures and practices in the Arizona legislature. Most often that which we read or head is critical of how the legislature goes about its business. Words such as “fair” and “open” and “level playing field” are used, as if to imply that the legislature should operate in a significantly different manner that it does.” Senator Randall Gnant, “From Idea…..To Bill…..To Law, The Legislative Process in Arizona,” February 2000

The Guest Opinion, “Who controls public streets,” Arizona Capitol Times, April 1, 2010, is on-point re the proposed HB2153 legislation as well as the global issues respecting associations’ control of property not owned by an association, associations’ control of the conduct and actions of Arizona citizens clearly not subject to the association’s governing documents and associations’ coveted power and dominion over homeowners subject to the association’s governing documents, the sacrosanct “private contract.”

Association stakeholders opposed to HB2153 regularly blur the lines between their long-held belief in “private contracts” not to be interfered with by federal, state, county and/or municipal governments and certainly not the legislature unless and until it suits the stakeholders and their client associations’ interests as evidenced by associations’ growing reliance on “what can government do for” stakeholders and associations today. (See Community Resource, Issue 1 / 2010, “What Your Local Government Can Do For You,” Community Associations Institute / Central Arizona Chapter, attached)

“Getting a hearing on a bill is a crucial first step for individual citizens, lobbyists, special interest groups and state agencies..in the Senate, bills that receive a hearing have a high likelihood of passing the full Senate. So, while failure to secure a hearing is a virtual disaster for a bill, getting a hearing takes a bill on the longest step towards becoming law.” (Gnant)

Please include HB2153 on the Committee On Government Institutions’ agenda, Consideration of Bills, permitting the peoples’ representatives in the Senate to vote on the bill’s passage as your brethren in the House, the people’s other representatives, did so on February 17, 2010 (43/14/03).

Respectfully,

William M. Brown