Legislative intent of the framers and statute constitutionality

Many times, regarding the constitutionality of statutes, I have come across the long standing legal doctrine that the statute is presumed constitutional and that the challenger bears the burden of proving otherwise.

The following opinion in Biggs speaks to statutes that are not a violation of fundamental rights, leaving the fundamentality question unanswered.

Determining constitutionality is a question of law, which we review de novo [ a new case analysis]. When the statute in question involves no fundamental constitutional rights . . . we presume the statute is constitutional and will uphold it unless it clearly is not. (¶ 9).[1]

The justification for this doctrine is explained in the Arizona appellate court opinion in Vong,

“The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.[2]

In other words, our elected representatives, who had enabled the challenge statute to begin with, will react to the outrage of the people and correct their legal folly. Yeah, right! Not in this dysfunctional climate!  The courts will not interfere, not even when the statute is a horrendous violation of the Constitution.

With respect to determining constitutionality, the court must examine the statute itself, its wording and grammar (including punctuation), and the intent of the drafter or framers of the statute. The intent of the legislature, with respect to HOA-Land statutes in all states, has become very important as numerous constitutionality challenges have arisen lately.  The Court in Biggs made the importance of the intent of the framers very clear,

The Constitution should be construed so as to ascertain and give effect to the intent and purpose of the framers and the people who adopted it. We give effect to the purpose indicated, by a fair interpretation of the language used, and unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning. (¶ 10).[3]

The intent and purposes of the Framers was long upheld by the FCC as concerning the media providing equal opportunity to reply on public issues.  “The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues.[4]

But President Reagan did not see it that way when he vetoed fairness legislation in 1987.

“This type of content-based regulation by the federal government is, in my judgment, antagonistic to the freedom of expression guaranteed by the First Amendment,” Reagan said in his veto message. “In any other medium besides broadcasting, such federal policing of the editorial judgment of journalists would be unthinkable.”[5]

As it has come to pass, the power of the people has been slowly eroded and replaced by that of the business special interests.  In Arizona, for instance, the legislative bill manual advises against inserting “legislative intent’ wordings as it may require the sponsors to defend themselves at a later time. “4.19. Generally, intent sections (also called “purpose” or “legislative findings” sections) should not be used in a bill.[6]

And so, the people, and especially the “citizens” of HOA-Land, are faced with an insurmountable obstacle to fairness and justice when attempting to challenge the constitutionality of HOA statutes.

 

References

[1] Biggs v. Betlach, No. CV-17-0130-PR (Ariz. November 17, 2017).

[2] Vong v. La Vie,  CA-CV 13-0423, (Ariz. App. Div. 1, 2014).

[3] Supra, n.1, ¶ 10.

[4]The death of the Fairness Doctrine and the rise of HOA-Land media bias”.

[5] Id.

[6]  The Arizona Legislative Bill Drafting Manual 2017 – 2018.  

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Published in: on November 18, 2017 at 1:31 pm  Comments (1)  

The death of the Fairness Doctrine and the rise of HOA-Land media bias

Those of you who have followed me for some time will have run across my criticism of the media[1]  for failing to honor the trust placed in it by the First Amendment to the Constitution — free speech.

“Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..”

What’s this Fairness Doctrine, you may ask?

For over 30 years, the Federal Communications Commission (FCC or Commission) required broadcast licensees (TV and radio) to present controversial issues of public importance and to do so in a manner that was fair and balanced. This requirement came to be known as the “Fairness Doctrine.”[2]

The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues . . .. The “public interest” justification for the fairness doctrine is outlined in Section 315 of the Communications Act of 1937 (amended in 1959).[3]

In “What Is The Fairness Doctrine?”, author Gill quotes the Court in Red Lion v. FCC,[4]

It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.

The death of Fairness

Subsequent to the 1969 Supreme Court ruling in Red Lion, things turned down for equal opportunity to reply.  Further court rulings and the resultant FCC dismissal of the Doctrine sealed its application. President Reagan, in an astounding rejection of free speech for the advancement of public issues as a necessity for a democracy to properly function, vetoed legislation with the following justification:

“This type of content-based regulation by the federal government is, in my judgment, antagonistic to the freedom of expression guaranteed by the First Amendment,” Reagan said in his veto message. In any other medium besides broadcasting, such federal policing of the editorial judgment of journalists would be unthinkable.[5]

Understanding that Reagan was in the entertainment and media business, no wonder he turned the First Amendment on its head.  He tossed out the intent and purposes of the Founding Fathers who saw the necessity of open dialogue in a healthy democracy. By his veto he allowed business interests to redefine the compelling government interest set forth by the Founding Fathers to protect the Constitution.

The court rulings and the FCC reaction faced with the above reality, can be summarized by the 1989 DC District Court ruling (final ruling in Syracuse Peace Council v FCC) holding,

On the basis of the voluminous factual record compiled in this proceeding, our experience in administering the doctrine and our general expertise in broadcast regulation, we no longer believe that the fairness doctrine, as a matter of policy, serves the public interest …[6]

 

In summary, no longer must the media honor the original trust given to it under the First Amendment.  It no longer needs to present both sides of the story for an informed electorate, an informed public.  It can, as profusely evident, present its own view of the “facts” as we witness conservative vs liberal, Democrat vs. Republican, the rich vs the middle class, white vs black, etc., etc.  As one media guest put it, America has become tribal with one faction opposing another faction.

And these attacks upon our American system of democratic government have trickled down to HOA-Land where they have been adopted by the media, undoubtedly influenced by the special interest promotors of HOA-Land.  And so, the public, the readers and viewers of HOA “news,” get half-truths that do not serve the fundamental requirement of a democracy to inform the public.

 

References

[1] See in general, HOA-Land success aided by the failure of investigative reporting (2017)  Arizona Republic: A new low in media ethics and a violation of the public trust.’ (2007); Continued national HOA problems and the failure of the media; (2007).

[2]Fairness Doctrine: History and Constitutional Issues,” Kathleen Ann Ruane, Congressional Research Service, 7-5700, p. 1, July 13, 2011.

[3]What Is The Fairness Doctrine?”, Kathy Gill, ThoughtCo., May 23, 2017.

[4] Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969).

[5]Reagan’s Veto Kills Fairness Doctrine Bill,” Penny Pagano, L. A. Times, June 21, 1987.

[6] Supra, n. 3.

Published in: on November 17, 2017 at 9:31 am  Comments (5)  

CAI member survey: where are the facts, just the facts?

On Nov. 9, 2017 CAI issued an internet news release on the Yahoo Groups e-list, CAIerelease@yahoogroups.com, to selected members.  This release, as usual, touts the greatness of CAI, but this time it’s an outright member survey.

CAI Member Needs Assessment Survey” release. Its stated purpose was to allow “us to hear directly from our members and ultimately gather a better understanding of the essential needs and significant challenges our members face living in today’s community associations.

I am a member of the Group, but not surprisingly apparently a persona non-grata member as I don’t receive copies of releases nor can I see the survey results.   Instead, if you are not a member, you can rely on the summary provided in the news release as no other ‘facts’ are provided. However, the release does state, “SELRES_2d85eb01-5a56-42d3-8b8a-67b5beb0dd1eSELRES_037bd84e-972f-44be-9885-377f4a303540SELRES_e236a0bf-ec96-4d49-acfe-a9872651b5daCOMMUNITY ASSOCIATIONS INSTITUTE (CAI) RELEASES MEMBERSHIP SURVEY.”  But whereSELRES_e236a0bf-ec96-4d49-acfe-a9872651b5daSELRES_037bd84e-972f-44be-9885-377f4a303540SELRES_2d85eb01-5a56-42d3-8b8a-67b5beb0dd1e?

The short release goes on to simply assert that,

[T]he most important issues facing community associations are uniformed boards, increased legislative/regulatory oversight . . .. CAI members are concerned about state regulations impacting community associations, and an overwhelming majority of CAI members surveyed (92 percent as compared to 89 percent in 2013) agreed that CAI advocates on behalf of community association interests and responds to legislative, legal, and regulatory activities. 

In short, very short, CAI makes the claim that overwhelmingly it’s members support its lobbying activity for HOAs that are opposed to state regulation. Isn’t CAI supposed to lobby for its industry, which can be loosely classified as HOA services and not for HOAs? The pertinent lobbying would be, naturally, for the advancement of its vendor members as a 501(c)6 trade organization should be advocating.

CAI rightfully argues that boards are largely uninformed, but it fails to identify CAI, the international HOA educator, as the culprit for providing self-serving propaganda rather than the truth of the matter.  (See in general, HOA Common Sense: rejecting private government).

But, who are these members of this business trade group? Surely not HOAs that are consumers of CAI’s member services. CAI fails to inform readers that its membership does not include HOAs per se, and that only a minority of 32.8% (as of 2016) of its members are “volunteers.”  In my Sept. 2017 analysis of CAI’s “Fact” Book, (CAI 2016 Factbook: looking into the ‘facts’), I summarized the CAI Indiana Chapter data from its survey of some 23 state chapters. (The Indiana Chapter data can be found here). I wrote,

I came across data from the CAI Indiana chapter for 2015 and 2016. The percent ‘volunteers’ per HOA for both years was 32.7% and 32.8%, respectively. (Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.)

Furthermore, a clear majority of these “volunteers” are HOA board members.  CAI recruits these “volunteers” by offering discounted fees for multiple directors from the same HOA, paid for by member assessments.  Talk about a legal loop-hole!

It’s not surprising that CAI’s factual survey is unprofessionally biased and constitutes self-serving propaganda, which has undoubtedly been distributed to the policymakers, state legislators, the media, and the general public. Shame, shame!

And yet there are many who still believe that CAI is the path to substantial HOA reforms for homeowner rights.  They refuse to take off their rose-colored glasses and deal with the reality of some 44 years of CAI’s failure to solve HOA problems; failing in its reason for being when formed in 1973.

Published in: on November 11, 2017 at 9:59 am  Comments (5)  

Public service msg: AZ Sen. Flake’s speech applies to HOA-Land

The following are excerpts from the text of Sen. Jeff Flake’s remarks from the floor of the U.S. Senate on Oct. 24, 2017, as prepared for delivery.

The notion that one should stay silent as the norms and values that keep America strong are undermined and . . .  the notion that one should say and do nothing [is] profoundly misguided.

.   .   .   .   .   .

We must never regard as “normal” the regular and casual undermining of our democratic norms and ideals. We must never meekly accept the daily sundering of our country . . .  the threats against principles, freedoms, and institutions; the flagrant disregard for truth or decency . . ..

.   .   .   .   .   .

Acting on conscience and principle is the manner in which we express our moral selves, and as such, loyalty to conscience and principle should supersede loyalty to any man or party.

And “loyalty to conscience and principle should supersede loyalty to” any special interest agenda or manifesto[1] or propaganda statements[2].

Read Flake’s bombshell Senate speech October 24, 2017.

References

[1]  CAI manifesto: CAI’s plan for HOA-Land in America.

[2]  See in general, CAI: the HOA form of government is independent of the US Constitution.

Published in: on October 25, 2017 at 4:59 pm  Leave a Comment  

Bill creates HOA agency to restore constitutional protections

The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments. (George K. Staropoli)

CAI continues its marketing propaganda[1] lauding such objectives as: collective management, privatization of government, affordable housing, and social costs and marketing efficiencies.  Yet, CAI continues to ignore allegations that HOAs are authoritarian private governments relying on compliance by coercion; and operating outside the US Constitution with its protections of individual rights — the fundamental basis of the American social contract.

This press release seems to echo the philosophy of WWII Italian dictator, Benito Mussolini, the father of fascism.[2]

Anti-individualistic, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State…. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual.[3]

A fitting, modern interpretation of this anti-American, authoritarian philosophy can easily be applied to HOA-Land:

Against individual member rights, the homeowner association concept is for the HOA; and it is for the individual in so far as he conforms to the covenants, bylaws and rules and regulations of the HOA . . . the free expression of individual rights and freedoms rejected the HOA in the interest of the individual; the homeowner association concept reaffirms the HOA as the true objective of member obligations and duties. (George K. Staropoli).

It is unconscionable that this country has adopted the legal doctrine that any bill passed by a legislature is presumed to be constitutional, requiring a citizen to file a costly lawsuit challenging the constitutionality of the bill.  One would think that the legislature, and other government officials, would stand by the bill in question and defend its constitutionality.  Not so![4]

On the other hand, one would expect that the legislators, in good conscience, would reject any bill or repeal any statute that they found a violation of the Bill of Rights, or the state’s equivalent Declaration of Rights; or an unconstitutional violation of the 14th Amendment’s due process and equal protection of the law clauses.  Not so!

A long time ago in 1994, Prof. Evan McKenzie wrote in his landmark book, Privatopia, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[5]

I believe that our elected officials are quite familiar with this aspect of private, contractual governments hiding behind a simple, single phrase in the first clause, Article I, Section 10 of the US Constitution, “No state shall . . . pass any law . . .  impairing the obligation of contracts.”  The dominance of this impairment clause provides them with a misguided justification that permits the denial of the 14th Amendment protections.

It is long past time for the legislature to restore constitutional protections of individual rights, freedoms, privileges and immunities for their citizens living in HOA-Land.  Protections that were removed by misguided statutes creating special laws for special interests based on misrepresentations. Passing this bill into law would be a giant step forward.

The proposed Arizona Department of Homeowners Association (ADHOA) bill[6]

The intent of this bill can be found in my speaking for the legislature in Section 16, Legislative Intent, (was Section 20), of this 20-page bill.[7]  The bill is formatted according to legislative standards.[8]

Highlights of the bill:

  1. Adds OAH due process to 33-1256 and 33-1803.
  2. Creates Dept. of HOAs under Title 41, adding Chapter 20 that replaces ADRE statutes.
  3. Authorizes ADHOA Commissioner to enforce AZ Constitution, Chapter 2, Declaration of Rights.
  4. Authorizes educational classes for HOA board members.
  5. Requires Commissioner approval of new and amended governing documents, and review of CC&Rs.
  6. Commissioner can
    • adopt rules in accordance with Chapter 20,
    • Investigate and enforce compliance,
    • Enforce any ordered restitution by developer or HOA (to compensate homeowner for monetary loss and damages),
    • Appoint a receiver to manage the HOA,
    • Require HOA cooperation with investigation,
    • Institute legal action against persons destroying, concealing or removing corporate records,
    • Create standards for meaningful penalties for violations (similar to existing public requirements).
  7. Creation of an ADHOA advisory board of HOA members only to provide recommendations to the Commissioner.
  8. Sets filing fees based on current Justice Court filing fees, currently only $86.

 

References

[1]Community Associations Continue National Growth,” October 19, 2017 News Release.

[2] See Benito Mussolini: What is Fascism, 1932.

[3] Fundamental Ideas of Fascism,” Benito Mussolini, Souciant, Inc.

[4] See my Advisory, Arizona’s new “Take That George!” law: officials don’t have to defend HOA statutes.

[5] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[6] HOA regulatory agency bill-rev.pdf

[7] See my Advisory, Justifications for an independent HOA regulatory agency.

[8] New wording is designated in blue CAPS; removed wording will have a strikethrough.  All other wording is unchanged wording that must be included even if one word is changed in a lengthy amended section.

Published in: on October 22, 2017 at 5:56 pm  Comments (4)