Tag: law

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 “I cannot understand why the SB 1454 statutes declared invalid, and agreed to in a settlement agreement, are not being repealed?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.

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.

Letter criticizes CLRC rewrite of Davis-Stirling (HOA) statutes

Below are excerpts from my January 30th  4-page letter to CLRC.

“I read Ms. Vanitzian’s LA Times column of December 29, 2013, Attempt to Simplify California Condo Laws Ends in Confusion and your response contained in MM14-09. As you may be aware I commented on her article in two parts. . . .  If you are looking for facts, allow me to introduce a few.  I recall Susan French’s study in 2000 (H-850), at the request of CLRC, that started the ball rolling ‘to clarify the law [and] establish a clear, consistent, and unified policy with regard to formation and management of these developments.’ 

“Still, much of her report aside from the need for clarity, Part II, sections C and D, called for protections of homeowner rights and a bill of rights statute in the rewrite of Davis-Stirling. . . .  Whatever happened to the proposed ‘Chapter 2, Members Rights, Article 1, Bill of Rights,’ (MM06-25)?

“There was my letter (MM05-25s1) arguing for the need for this equal rights chapter, to which you answered with, ‘Beyond the scope of this project’ even though French had recommended protecting homeowner rights. . . . It is obvious that this rework by stakeholders without meaningful homeowner input easily leads to clarifications and simplifications as interpreted solely by this group, from its perspective, which would not protect the homeowner. The new D-S cannot be seen as the result of an unbiased effort and with integrity.

“The approach used by CLRC has the smell of corporatism, the rule by a handful of corporations.  It is a form of government that flows from fascism as defined by its founder, Italy’s Benito Mussolini, Il Duce.  ‘Fascism combats the whole complex system of democratic ideology, and repudiates it . . . . Thus understood, Fascism is totalitarian, and the Fascist State . . . interprets, develops, and potentiates the whole life of a people.’

“CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03), but in the next sentence dismissed the US Bill of Rights as non-existent substantive law. The obvious answer – as there were a number of published books, papers and journals from nationally recognized researchers and political scientists relating to this issue – was to recognize that indeed HOAs were de facto governments and to subject them to the Constitution.”

****

The cry “no government interference” while accepting HOA private government interference is irrational.  This acceptance of undemocratic, authoritarian HOA government with less protection of individual rights and freedoms than public government is a rejection of the Constitution, the Declaration of Independence, and the Bill of Rights. These people have lost their common sense!

Neither CLRC nor CAI will go down in history as Heroes of the American Republic, but perhaps may be remembered as Heroes of HOA-Land. 

The complete critical letter can be found at MM14-09s1.

It’s time for others to act for HOA reforms

After 13 years as an activist for HOA reforms across the country I am withdrawing my active involvement in HOA issues. However, I will remain an observer of events, commenting from time to time on the broader constitutional issues. 

Over these years I have provided a wealth of information and legal authorities as a source of materials for HOA reform legislation and in dealing with state legislatures.   A summary of the issues that I consider critical at this turning point in HOA reform advocacy can be found in the PDF file, HOA Common Sense: rejecting private government.  One point that I make is why are HOAs allowed to escape constitutional compliance when even every state’s home rule laws require compliance?

A final comment:  When these broad constitutional issues are ignored as justification for reform, then advocates have accepted the legitimacy of the HOA scheme and pro-HOA laws.  This acceptance of the “robber barons” reduces the debate to a wrongful equality of rights argument, to a “we must treat both sides fairly.”  As history has shown, the advocate generally loses.