legislature – Page 47 – HOA Constitutional Government

AZ bill, HB 2441, is a bill of attainder and an act of tyranny

Arizona’s HB 2441 is an unconstitutional Bill of Attainder under the US (Art. I, § 9, cl. 3) and Arizona Constitutions (Art. 2, Section 25). It is a violation of the “separation of powers” doctrine as the legislature has acted to punish certain members of its citizenry — the taking of private property rights from homeowners living in HOAs — by a “trial of the legislature” and a legislative exercise of a judicial function. As such, a bill of attainder has been described as an act of tyranny (US v. Brown, 381 US 437 (1965)).

A careful reading of the Senate amended version of HB 2441 . . . permit and declare it is not illegal to so act by minority vote, the taking of private property rights from Arizona citizens without their consent, and in violation of their contractual rights. This bill, by its “blessings” that it has now been declared legal for a minority to so act and therefore incumbent on the homeowner to be obey, opens the “barn door” to the establishment of the oligarchical control of the community.

In Brown, the Supreme Court held,

“The Bill of Attainder Clause was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power.

“A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct.”

HB 2441 repudiates the fundamental premise of democracy — majority rule. This bill is a special law for a private party and is prohibited under state and federal constitutions.

Read the complete Commentary here.

AZ Supreme Court to decide whether or not to proceed on Gelb and HOA adjudication

The Arizona Supreme Court will decide on April 19th whether or not it will hear the appeal on the unconstitutionality of the adjudication of HOA disputes by an administrative agency.

For more information, see

Advocate submits amicus brief in AZ supreme court appeal of HOA due process

AZ bill, SB 1148, seeks to restore OAH adjudication of HOA disputes

Violating HOA due process would be oppression

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

The Arizona bill, SB 1148 passed out of committee on March 1st, to restore the Office of Administrative Hearings adjudication of HOA disputes appears to be stalled, once again as in 2006, by the House Rules Committee. Once more it is not on the House Rules agenda. Failure to address the objections of the appellate court opinion in Gelb will heighten the likelihood that the Arizona Supreme Court will now have to decide the issue, and other matters raised in my amicus curiae brief. See Gelb v. DFBLS, CV 10-0371-PR.

The supreme court has yet to decide to hear this important case, waiting, as expected, to see if the Legislature would pass SB 1148 to render the constitutionality issue moot – no longer a controversy. If not handled by the Legislature, then the Court cannot avoid addressing the following plea in my brief:

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

In deciding the constitutionality issue, the Court will need to address the real issue at hand, the separation of powers issue, where the Legislature remained silent and did not file a defense of their HOA due process statute. However, the Legislature felt compelled to intervene in the controversial DOJ challenge to the immigration law statute, SB 1070. Is this selective support for certain laws and parts of the Constitution over others?

Senate President Pearce, author of SB 1070, said, “I want to make sure everyone knows, we, in the Senate, will govern from the bottom up, not from the top down” and I believe in the rule of law, I’ve always believed in the rule of law, Weare a nation of laws.” Yet it appears that top-down, special interest “push” pressures still prevail with respect to HOAs (See prior commentaries with respect to HB 2441).

It is a well established doctrine that the legitimacy of a democratic government rests on fair and just laws.

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

It would seem that the best course of action is to quickly pass SB 1148

Proposed “consent to be governed” statute, the “Truth in HOAs” bill

No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.“

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays. We know that CAI is opposed to such constitutional protections for members in HOAs, as the record shows in their NJ Twin Rivers appellate amicus brief. But, it is time for the legislators to “man up” and protect the people from harm inflicted by special interest groups. There is no necessary and compelling need for legislatures to deny the homeowner his rights, freedoms, privileges and immunities as a citizen of his state and of this country.

Read the complete proposed Truth in HOAs statute.

Calif. opinion: CC&Rs and surrender of constitutional rights

Public policy protects HOA principalities

How many readers own a timeshare? I do. Do you know, for a one-week ownership and for a comparatively inexpensive purchase, the buyer gets tons of protections under the law. Why? Because of the abuse in the past. But, not so with respect to all the HOA abuse and questionable validity of CC&Rs and the consent to agree issues over so many years. There are no “Truth in HOA” laws in any state!

When buying a timeshare (“vacation ownership” nowadays), and I bought a few, we actually had a sit-down with the sales manager who, like in a closing, went over all the many documents, took time to answer questions, and had us initial a double-spaced, large type, two-page itemized list of important legal matters, indicating that we had full knowledge and consent of the legal issues. Thats’s in addition to all the other papers that we had to actually sign.

What’s the problem with buying an HOA propertty, if everything is on the “up and up?” Maybe because there would indeed be a “Truth in HOAs” document to be given and signed off by the prospective buyer prior to closing, and only if signed off can the sale be completed. And that’s in addition to the current sales document, the inadequate HOA disclosure document, now required by almost all states.

What seems to be the problem that these HOA buyer protections have been missing all these years?