Tag: legislature

AZ HB 2160, HOA elections reform, provides misdemeanor penalties

One of the most needed bills for enforcement to protect the rights of homeowners in HOAs is Arizona’s HB 2160, which passed the House and goes on to the Senate.  This bill makes “A corporation or other entity that intentionally violates subsection [ ] of this section is guilty of a class 1 misdemeanor.”

In a subculture where legalized extortion goes unpunished, and where recourse to democratic election processes to elect and replace corrupt government “officials” are woefully inadequate, the Arizona Legislature is finally putting its foot down on such acts against public policy. HOAs hide behind the fact that they are private contracts and are not bound by constitutional protections while proclaiming how HOAs are a great town hall democratic institution.

However, the newly elected President-elect of CAI’s College of Community Association Lawyers, Arizona’s Scott Carpenter, protests this bill: “Where is the evidence that voting ballots should have a cloud of criminal prosecution having over it? Criminalizing the counting of homeowners association and condominium association ballots should outrage Arizona’s citizens.” (Criminalization of HOA Elections).

Why should citizens be outraged? While complaining about no justification to hold violators accountable, Carpenter offers know valid reason not to.  Perhaps the newly elected President-Elect doesn’t understand the difference between criminal and civil law. Let me explain.

Civil law is in regard to disputes between two parties, like a contractual dispute. Criminal law, on the other hand, are violations against the state and its laws. Nothing new, nothing different. It is there to “protect society . . . from those forces that most threaten the peace, the harmony . . . and society as a whole.” It is there to deter and to punish.

This bill is an affirmation that the violations of state laws by HOA boards and officers, and their agents, are contrary to the good of the greater society and must cease. The bill says that HOAs are no longer independent principalities doing as they wish without fears of liability for wrongful acts. If this is too much for some people, that their “free ride” is over, well, then they can just move out! But, the American system of government that treats all people equal and applies the law equally, and that now applies to HOAs, cannot continue to tolerate this separation from constitutional government.

It is the gross and prolonged failure of the industry to police itself in the midst of such abuse that has caused the legislature to act. It is the gross and prolonged failure of the “national HOA educator” organization with all their attorney lobbyists to work in support of, and not in opposition to, these bills that protect society as a whole that has caused the legislature to act.

A Class 1 Misdemeanor is an offense that carries up to 6 months in jail (ARS 13-707(A)(1)), and up to $2,500 in fines (ARS 13-802(A)). Neither are mandatory. However, a fine for a misdemeanor committed by an enterprise is up to $20,000 (ARS 13-803(A)), but is not mandatory either.

Why do people harm others in HOAs?

The following is my conclusion in Why people do harm to others in the HOA subculture.

Looking Toward the Future

In the Milgram and Stanford Prison Experiments researchers explored what evil men can and will do to others 1) under repeated pressure from authority figures to follow the rules, and 2) in an environment where one is expected to act in accordance to the  roles of the community.  The researchers found that basically good people will indeed do harm, even do severe harm, to others.  The conditions and factors present in these experiments exist within the HOA community, and the harm being done to others in these HOAs is well documented in the media and in the courts.

 The authoritarian insistence on enforcing complete obedience to the CC&RS, as repeatedly impressed on HOA boards by their attorneys, is well documented. The compliance by the directors and officers with these pressures for enforcement is well documented.   The blind obedience, apathy, and passivity  to authority by HOA members – the “prisoners” — who sign and agree to provisions blatantly detrimental to their interests, is well documented.  The adoption of the roles demanded of them by the system  and by the situation —  state laws and the court opinions, the adhesion CC&Rs and governing documents, and the lack of effective recourse — is well documented.  

The numerous “educational” seminars taught  by the attorneys and managers, many of which are sponsored by state and local governments,  serve not to fully inform but to indoctrinate the members into roles of obedience  and passivity, is well documented.  Good people doing bad things or remaining silent in the midst of wrongful acts and actions by the HOA is well documented.

State governments, the legislatures,  cannot allow HOAs to continue to  run amuck and to  freely violate the laws and their contractual obligations without legitimate and necessary constraints holding them accountable for the harm that they do to others.  Stop the “free rides.”  

Do not be conned by the HOA special interests unsubstantiated fear mongering about the demise of HOAs, and their  “only 5% are bad”, so we don’t need any restrictions.  Property crimes over the past 5 years averaged 3.3% yet we have laws.  Murder and rape rates are so miniscule compared to 5% (roughly 5 in 100, 000, or .00005), yet we have laws against these crimes.   If HOAs are indeed the next best thing to Mom’s apple pie, then they will survive.  If not, then it was the factor that “we got a good thing going here,” in terms of anything goes, that was the driving force behind all the clamor.  Fear not, people will continue to buy homes that are truly their private property.

But, to let the people in HOAs  continue to do harm to others and do nothing as  a matter of public policy is shameful.

Read the full paper here.

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.

HOA bills and the legislative “system”

I thought it a good time to summarize how your state legislature works. I’ve referred to the need for a champion, which implies, if not opposition, but having to deal with the legislative “system.” And there is a System. I will use Arizona as a model, understanding that other states will vary somewhat. For example, the Texas Legislature meets every 2 years. They do not use Committee of the Whole (COW) as the first Floor vote, but “second read.” California has sessions lasting for 2 years. Check your legislative website for your state’s process.

 

The System – the power of the majority party

The majority power rules and control the System. The President of the Senate and Speaker of the House determine the committees, what bills are heard where, who the Chair will be, and who are the members.

The committee chair determine whether or not his committee will hear a bill referred to it. I believe he can be overruled by a vote of the members, but that would be like going over the head of your boss, a No-No. At the request of a bill’s sponsor, he can hold the bill until the next meeting because the sponsor doesn’t have the votes. The sponsor can also “give up the ghost” and kill his bill.

Next step may be a Rules committee, a perfunctory committee supposedly passing on constitutionality, but just another place where the Chair can prevent a bill from proceeding to a floor vote.

(The Caucus vote, if passed out of Rules, is a nonbinding “courtesy” discussion meeting of the separate parties.)

Next we have what is called the Calendar, or Calendars for COW and Third Read. They are “ files” under the President’s or Speaker’s control who decide if and when the bill moves to the COW/second read vote. If passed at this point, these leaders can then decide, again, if the bill will proceed to a third read/ final vote of the House or Senate.

If passed out of the first branch, the process starts all over again in the second house.

Your champion must get support of all these players, or not run into serious opposition from the power players. He/she needs your emails and voice sent to the committee members and even to all the legislators if HOA reform bills are to succeed — especially the controversial bills. Over the years I’ve seen bills die at every one of the above stages. I have seen HOA bills held for weeks by the Speaker or President, who finally succumbed to public outcry and allowed the members to vote the issue, all of which passed with flying colors. The System is political, understanding that the majority party members also voted overwhelming to pass the bill.

At this early stage in Arizona, of the 16 HOA bills, 1 was Held, and 1 is sitting in the COW waiting for a floor vote. It had passed the committee by a 5 – 2 vote, but was objected to for a direct floor vote, which does not allow discussion. It has been sitting on the COW calendar for 3 weeks, waiting at the pleasure of the President of the Senate for a Floor vote. The bill would impose treble damages to HOA boards if the court found the lawsuit to be selective in nature against the homeowner. (Is that any worse that the right to take away one’s home for $50 after 1 year?)  Yes, discussion is important, but it must be allowed to occur if the democratic process is to work.

Yes, Virginia, there is a Legislative System.

Does civil government rule or does it submit to private HOA groups?

Dear Arizona Senators,

I continually am amazed at the opposition to this bill and the mistaken belief that any private contract can supersede legitimate local government. We all know that there is no absolute right to private contracts! HOAs are ignoring their role in a democratic society to obey the rules, as they like to say about homeowners in HOAs. They should follow the rules of this society and go to the planning board for a variance. Like they repeatedly say, “Homeowners can go to the courts, to agencies, to get a fair deal, etc.” but that’s not for the HOA that insists on making their own rules. It is simply a power play as to who rules the municipality.

The legislature has no choice but to uphold public government authority. If problems exist or changes are desired, since the HOA does not own the public roadway, the HOA can do what all citizens are entitled to do, go to their planning board and ask for a variance. The fact that the initial planning board approved these private roadways speaks to the retention of public government authority, otherwise it could have required private streets.

Please bear in mind, since CAI loves constitutional challenges as it fought over the proper delegation of authority to DFBLS, the court ruling in McLoughlin v. Pima that held,

However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control

and

The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified, (Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (Ariz. App. Div. 2 2002), ¶ 7).

HOAs have usurped and assumed public government functions! And we all know accountability to and proper supervision by state the does not exist with HOAs to meet this constitutional requirement. They cannot have their cake and eat it, too! They cannot demand special consideration not to be held accountable and then do as they please.

Please make it clear to all persons that we are one state, indivisible with liberty and justice for all.  Please pass this important bill.

Note:  This bill, SB 1113 and its House duplicate, HB 2030, simple reassert public government control over public streets within an HOA subdivision.  HOAs have fined homeowners for any car parked in front of their homes.