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 Constitutional Government 