Justice Stevens’ constitutional amendments can end private HOA de facto governments as we know them

Allow me to say at the very start that the end of HOA government legal scheme will not end the real estate “package” that constitutes planned communities — the private amenities, landscaping rules and regulations (laws), or private community taxes (assessments).

Over the past four decades, rules crafted by a slim majority of the members of the Supreme Court have had a profound and unfortunate impact on our basic law. Far from striding toward a more perfect union, we have actually slid backwards.[i]

As an extension of the above quote, consider the influence that the modern Ministry of Public Enlightenment and Propaganda,[ii] CAI, has had on our social and political institutions.  (See the national lobbying group’s legislative involvement to protect HOAs across the country in 2013.)

My HOA rephrased quote:

Over the past four decades, legislative and judicial support, cooperation, and coercion for HOA private governments, not subject to the Constitution, have had a profound and unfortunate impact on our democratic system of government.   Far from striding toward a more perfect union, we have actually slid backwards.

Keeping Stevens’ discussion of his “anti-commandeering” amendment simple (see Proposed US Constitution amendments will help HOA reforms), the issue is whether or not the Feds can compel – commandeer – state officials to enforce federal laws.  Article 2 of the Constitution says “the laws of the United States . . . shall be the Supreme Law of the land; and the judges in every state shall be bound thereby.”   So we come to the attorney word games that it does not say that other state officials shall also be bound.  The 10th Amendment says what’s not said belongs to the state.  Well, what did the Framers intend?

Logically, if the judges are obligated to enforce federal laws and an official violates the federal law that orders him to act in such a way, the official can be sued.  What’s the point?  And, as the judges like to say, after a clear reading of the law, the first part of the clause stands by itself: “the laws of the United States . . . shall be the Supreme Law of the land.” But, dealing with realities and the whims of the Justices in several decisions, Stevens feels inserting “and other public officials” after “judges” will make it quite explicit.

What this amendment can mean is that the Feds, as many are asking, can order state officials to enforce federal laws and the Constitution.  State legislatures and attorney generals would be answerable to the Feds instead of giving lame excuses of, ask the legislature to give me the power.  It’s a mockery of law and justice when individual states can ignore the Constitution that binds this country.  It’s a mockery of law when state legislatures approve HOA laws that unquestionably violate the laws of the land.

References

[i] Six Amendments: How and Why We Should Change the Constitution, front flap, Justice (ret.) John Paul Stevens (Little, Brown and Company, 2014).

[ii] “The Ministry of Public Enlightenment and Propaganda” was the NAZI agency headed by Josef Goebbels.

 

Published in: on April 24, 2014 at 7:05 pm  Comments (2)  
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Proposed US Constitution amendments will help HOA reforms

I have cautioned my followers about the ‘games’ that lawyers play with the precise wording and grammar used in bills and, eventually, the resultant laws.  They love to parse the sentences and apply interpretations that have a plausible relationship to a valid legal issue.  When they seek a ‘loophole’ in the law the plausible becomes unreasonable, yet the courts will go through the exercise and entertain a challenge to the law.

What is needed is a tightening up of the laws and bills as a result of an analysis of how their wording can be used to get around the intent of the bill.  With respect to HOAs this is an unlikely task when state legislatures favor the HOA legal scheme currently adopted as public policy. But there is hope stemming from the very top, from retired Supreme Court Justice Stevens who has proposed Six Amendments[i] to the US Constitution.  Below are 2 of the 6 proposed amendments that are particularly important to HOA reform legislation.

 

The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) — This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution. [New amendment].

In the “Anti-Commandeering Rule” Justice Stevens found it necessary to add “and other public officials” to explicitly bind government officials to obey the Constitution and laws of the land.  I am sure that the Founding Fathers did not think such an explicit statement would or should be necessary.  But, it’s obvious that our elected officials have forgotten their duties and obligations to the Union in favor of their political party dogma and their concern for their legacies. Just review recent state supreme court HOA decisions and the numerous pro-HOA state laws to understand the need for this constitutional amendment.

In the “Sovereign Immunity” amendment Justice Stevens found it necessary to hold elected officials on the federal and state levels to their obligation not to violate the Constitution.  The common example can be found in every state’s support of de facto HOA private governments unanswerable to, and circumventing, the US Constitution.   Again, one would not think that this would be necessary to state.

Both of the proposed amendments to the Constitution are the result of how lawyers examine the precise wording of the laws and Constitution, and raise “and, if, or buts” to get around the intent of the laws. Or, even to question the intent of the drafters of the bills.  With respect to HOA legal scheme, must we add such specifics to state constitutions and HOA/condo acts?

Bob Frank, a Nevada Commissioner, raised this very question; “Should HOA/Condo Associations Implement US Constitutional Protections For Residents In CC&Rs?  in the HOA Common Sense LinkedIn group (must be a LinkedIn member).  It’s a must read!

 

Reference

[i] Six Amendments: How and Why We Should Change the Constitution, Justice (ret.) John Paul Stevens (Little, Brown and Company, April 22, 2014). (Available on April 22th).

A lesson in HOA reforms and power politics in AZ

 

For those who still believe that HOA reform legislation is not political, and in particular not power politics, take heed from the following analysis of events at the Arizona Legislature.  It deals with SB 1454 reborn as SB 1482 this year and substituted for the identical bill, HB 2695.

It begins at the start of the session when no bills were introduced to repeal the statutes found invalid in last year’s SB 1454 by the court.  Calls to the Senate President and Speaker of the House, and Secretary of State, to correct this seemingly oversight went unheeded. That was puzzling to say the least.

First, SB 1482 was introduced by Senator Griffin and amended, and passed unanimously by the Senate. It sat in the House for an unheard of 7 weeks until this week.  It past the deadline for being heard in a committee of the House, per the rules, and was presumed dead.

Second, HB 2695 was introduced by Rep. Ugenti for the fourth incarnation of the “omnibus HOA bill.” It was also amended and made identical to SB1482. It passed the House Committee of the Whole (COW) over 4 weeks ago, but was not put on the final vote agenda giving the illusion that it was dead. It passed the deadline to be heard in the Senate.

Neither bill could be heard in the other branch, according to the usual rules.

Finally, after the budget negotiations were resolved this week, a few bills were attended to that included the presumed dead HB 2695. It was ready for the final vote this week.  Why now?  That wouldn’t help because it could not be sent to the Senate for a vote since that deadline, too, had past.

So, the clever plot unfolded when SB 1482 was substituted HB 2695, in compliance with the legislative rules, because it had already passed out of the Senate and there was no need to go back to be voted on all over again.

All in time to withstand a possible Governor’s veto as the session will not end before any veto. This allows the legislature to override the veto because it has more than a 2/3 approval of both houses.  It was all carefully planned out and timed!  The bill was passed 49-6 with 5 NV.

Why the theatrics is not clear.  Didn’t have the votes and had to wait?  I believe that the timing is too coincidental, and reflects a successful plot that demonstrated the power of the HOA stakeholders over the legislature. You know, let them think they won and we will stick it to them for last year’s law suit.  We will show them who’s boss!  Not unexpected based on Ugenti’s prior behavior and attitude.

Published in: on April 14, 2014 at 4:09 pm  Comments (6)  
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Getting the Feds involved in HOA reforms

As apparent from the Illinois Supreme Court opinion[i] favoring HOAs, the Feds need to get involved. However, the Feds, like state attorney generals, have no specific authority to get involved – HOA/condo states are state laws, except for those federal laws like the American Disabilities Act and Fair Housing.

A broader approach is necessary in order to wake up the Feds, and that can come about by an appellate or US Supreme Court case decision on 1) violations of a homeowner’s constitutional rights, or 2) a violation of the 14th Amendment’s equal protection clause brought under federal law § 42 U.S.C. 1983, Civil action for deprivation of rights. This approach would be similar to the whistle blower law suits of Erin Brockovich or Jeffrey Wigand (tobacco nicotine is addictive).

Read the paper at constitutional rights . . . .

 

[i] See IL Supreme Court holds HOAs “are a creature of statute,” and not contractual.

IL Supreme Court holds HOAs “are a creature of statute,” and not contractual

Last month the IL Supreme Court opinion in Spanish Court[1] reversed the right of an owner to withhold assessments in view of the HOA’s failure to fix and maintain.[2] In its argument, frequently making use of pro-HOA activist and CAI CCAL attorney in Florida, Gary Poliakoff, the Court stated,

 

Although contract principles have sometimes been applied to the relationship between a condominium association and its unit owners based on the condominium’s declaration, bylaws, and rules and regulations . . . the relationship is largely a creature of statute, defined by the provisions of the Condominium Act. . . . Although these duties may also be reflected in the condominium declaration and bylaws, as they are in this case, they are imposed by statute and exist independent of the association’s governing documents. Accordingly, a unit owner’s obligation to pay assessments is not akin to a tenant’s purely contractual obligation to pay rent, which may be excused or nullified because the other party failed to perform. ¶ 21.

So much for the sanctity of the CC&Rs contract! The Court, guided not only by Poliakoff, but by a CAI amicus curiae brief,[3] rolls with the punches and chooses when and when not to uphold the contractual nature of the governing documents.

The Court avoided dealing with the equitable aspects of withholding assessments just like withholding rent, rejecting the favorable appellate decision that held,

[T]he obligation to pay assessments, and the obligation to repair and maintain the common elements, as mutually exchanged promises, and concluded that under principles of contract law, a material breach of the repair obligation could warrant nonpayment of assessments. ¶ 7.

Adding fuel to the fire, the Illinois Supreme Court followed the CAI propaganda that the HOA’s survival depends on assessments being paid immediately and without question.

This section [of the IL condo act] was adopted to provide a constitutionally permissible, quick method for collection of assessment arrearages. . . . The necessity of a “quick method” for collection of past due assessments, unencumbered by extraneous matters, is manifest when we consider the manner in which condominium associations operate . . . . the condominium form of property ownership only works if each unit owner faithfully pays his or her share of the common expenses. When a unit owner defaults in the payment of his or her assessments, the resulting forcible entry and detainer action is thus brought “for the benefit of all the other unit owners.” ¶¶ 29 -30.

Permitting a unit owner’s duty to pay assessments to be nullified would thus threaten the financial stability of condominium associations throughout this state. . . . For the same reason that taxpayers may not lawfully decline to pay lawfully assessed taxes because of some grievance or claim against the taxing governmental unit, a condominium unit owner may not decline to pay lawful assessments. Trustees of the Prince Condominium Trust v. Prosser, 592 N.E.2d 1301.” ¶ 32.

 

Here we have the alleged dicta [non-supported court opinions], and becoming part of the Illinois public policy, that the survival of the HOA/condo is first and foremost. The HOA rises to the same level as a public entity, with the questionable governing documents now having contractual validity and court support to deny homeowner rights, freedoms, privileges and immunities.

 

Welcome to the New America of HOA-Land.

References

 

[1] http://www.state.il.us/court/Opinions/SupremeCourt/2014/115342.pdf.

[2] See appellate decision Court decisions: HOA Enlightenment Movement vs. the Dark Ages.

[3]Spanish Court Condominium Association II vs. Carlson (Illinois),” CAI Amicus Curiae Activity 2013.

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