political comment: removal of president — 25th Amendment

Have you read the 25th Amendment lately?  With the wild, wild Washington, DC goings on, let me remind everyone about the ability to remove the President.  Section 4 of the amendment reads, in part (my emphasis),

“Whenever the Vice President and a majority of either the principal officers of the executive departments . . .  transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

Can this really happen?  Depends on Trump’s continued conduct and perception by the people.  Depends on the meaning of “unable,” which could be physical or psychological.

Published in: on February 19, 2017 at 8:49 am  Comments (3)  

HOA-Land success aided by the failure of investigative reporting

In 2010 I called attention to a curious aspect of media coverage of HOAs.  I called it the “Unspoken Alliance of ‘No negatives about HOAs.’”[i]  Of course, state legislatures did not believe that there were serious problems with HOAs as there was no news to report.

The pro-HOA lobbyist special interest national lobbyist, CAI, also saw and reported no evil with HOA-Land, while lauding the grand and glorious benefits of HOA-Land. CAI ignored the suppression of homeowners’ rights and freedoms under the Constitution, which other citizens still enjoyed. And then there are those public interest firms swearing to defend the Constitution, but who also saw no evil and reported none.

With all these news stories about homeowner issues across the land, no one really took a deep look into what the hell was happening.  The reporters have not delved into such questions as:  How come this is happening? Why is this happening?  And asking policy makers and legislators, what are you doing about it?  And following up to any responses such as, they agreed to the contract, and questioning the validity of such responses.  That’s what the public expects from bona fide investigative reporting.

Why I wondered? It seemed that an Unspoken Alliance was the best answer. How else could this silence be explained?  That the horror stories and legal arguments supporting violations of the Constitution and state laws were fairy tales, just myths by delusional people?  That’s a “put-down” to good, decent people.

Today, Michael Smerconish saw the same problem in his morning CNN show with news coverage when he said,

“Where there’s no investigative reporting, government on the national, state and local level goes unchecked. . . .  But without investigative journalism at the local, state and national level we would have never learned about . . .”[ii]

While he was not addressing HOA-Land, his opinion sheds light on why HOA reform legislation has not really accomplished much over the past 53 years since the inception of the HOA legal scheme.[iii] I whole heartedly agree.

Edward R. Murrow and Walter Cronkite are not sleeping too well with today’s lack of deep investigative reporting. Where are the Woodward and Bernsteins, and Lowell Bergmans of CBS’ 60 Minutes (the tobacco/nicotine cover up)?  I think too much political correctness muddied the water – don’t say anything bad about anyone. And so, the legislators hide behind, “I dunno” and “I know nothin.’”

There is more than sufficient documentation and legal authority out there for a probable cause investigation into the truth about HOA-Land, and who better than the media’s real investigative reporters to let the people know the truth.

“The Truth Is Out There”

References

[i] The Unspoken Alliance: “No negatives about HOAs”.

[ii] Michael Smerconish, “Trump Wrong to Call . . .”, CNN Feb. 18, 2017.

[iii] Analysis of The Homes Association Handbook.

 

Published in: on February 18, 2017 at 12:52 pm  Comments (8)  

Rebuttal to sponsor’s interpretation of AZ SB 1240

Dear Senate Rules members,

In 2013 when Senator Barto finally got this public parking issue, SB 1278, put into law (Ariz. Sess. L. Ch. 103), I argued that the HOA should go to the planning board and get permission.  This is apparently the sponsor’s interpretation of his broadly and loosely worded SB 1240 as he stated at the Feb. 1, 2017 Government Committee hearing.  “Go to the town council. . .  and convince them that there is a need for restrictions . . .. So, public streets are to be governed by public bodies.”

As SB 1240 is currently written it is contrary to the above statements by Kavanagh.  Kavanagh’s interpretation is an overly simplified interpretation of the bill.  The bill implies that the public body still governs the public street and can pass an ordinance or variance to accommodate the HOA’ wishes, all according to state law.

However, the bill does not speak of ordinances, as Kavanagh implies, but of a grant of unspecified HOA authority and a grant of unspecified HOA regulation of public streets. It allows for granting far more power and authority to the HOA than ordinances. The HOA is a private entity not subject to the state constitution as are local government entities.  As written, it is an unconstitutional delegation of legislative authority to private HOAs.

For example, SB 1240 could allow for an HOA to enforce speed limits on public streets within the subdivision. More horrendous, it could permit the HOA to detain the public for violations, a police power reserved to public governments.  What else will this bill permit and grant  to HOA private governments?

This bill is also superfluous — not needed – as the right to file for variances with the planning board, as suggested by its sponsor, exists in law today and for the past 4 years.  Yet in the 4 years since this statute came into existence I have not heard of one HOA going before the planning board or town council seeking the right to regulate public streets. Have you?  There is apparently more behind this bill than meets the eye.

In my Commentary, “Another AZ HOA bill constitutionality challenge looms: SB 1240, I broadly outline the legal doctrine regarding an unconstitutional delegation of legislative powers.  I also strongly raised the issue that SB 1240 is, as written, a facially unconstitutional grant of authority for a “government entity” to delegate legislative authority to private HOAs to regulate public streets.  SB 1240 leaves many unanswered questions.

Here are a few examples of why SB 1240 is facially unconstitutional,

A.  Specificity:

  1. What “government entity’ is the bill talking about? Presumably a planning board, or as Kavanagh said, “town council,” but why not say so? What other entity could there be that has been dedicated or holds ownership by a “governmental entity”? We don’t know!  Especially when there are bills before the legislature dealing with special district government entities: SB 1402 and SB 1416.
  2. What authority is being “formally granted” to the HOA by the entity? Not specified. Yet, any such decision by the governing entity affects the homeowners’ constitutional contractual rights against interference. The homeowner is told that the subdivision streets are public streets and he has a reasonable expectation of public regulation. If the state to takes away that expectation of public regulation it would be interfering with the HOA contract, the CC&Rs.  It has no power to do so!
  3. While government agencies are granted certain powers and authority, the bill does not specify these valid grants of powers given to a particular government entity. (My Commentary given above uses the Arizona court challenges to OAH adjudication of HOA disputes, holding the need for specificity for such a valid delegation).
  4. The general powers of a town/city council are stated in ARS 9-240(B) 3. (a) “To exercise exclusive control over the streets, alleys, avenues and sidewalks of the town and to give and change the names thereof” (emphasis added). It cannot delegate – “formally grant” — these powers to a private HOA entity.
  5. ARS 9-463.01, municipal authority, makes it clear throughout that the “legislative body” of the municipality governs and regulates. But, it too, must abide by the state constitution.

B.   Sample authority to enact ordinances and regulations

  1. (Taken from a city in Texas.). “The board of commissioners of said city shall be vested with the power and charged with the duty of making all laws or ordinances not inconsistent with the Constitution of the State of Texas, touching every subject and matter within the local government, same to include the power to impose fines and penalties for the violation of the same. They shall have the power and authority in the government, management and control of xxxx, which are not especially delegated to some other authority and they may pass any ordinances they may desire delegating any part of their authority and duties to any other person, officer or employee, not inconsistent with the Constitution or laws of the State of Texas.” (emphasis added).
  2. “In the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the State. A municipality is merely a department of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit.” (Trenton vs. New Jersey, 262 U.S. 182 (1923)). (Emphasis added).

C.  Lack of homeowner/member protections

  1. Like many pro-HOA bills that grant HOAs governmental powers, this bill lacks a consideration for the homeowners. What protections do homeowners have against rogue boards and arbitrary and capricious regulations? The bill provides none!  Like being fined for a stranger parking in front of his home?  Since the HOA isn’t able to penalize non-members from parking violations without being the enforcement agency for the state –calling on the police to enforce parking — the innocent homeowner is penalized for not enforcing the HOA regulation against non-members.  C’mon!
  2. The CC&RS and bylaws would require amendments to provide bona fide due process hearings in place of the current HOA kangaroo courts in order for justice to prevail. You know, witnesses to challenge and question and a requirement to show evidence rather than someone’s unverified statement.  Let’s be fair!

D.  Judicial scrutiny

  1. This topic deals with the intent and purpose of the bill. There is no statement of legislative intent for SB 1240.  So, why after 4 years is the legislature addressing this issue?  What is the legislature’s government interest sufficient to pass judicial scrutiny?  If a law affects a group in a damaging and negative manner, strict scrutiny must apply and the proponents must specify a valid compelling and necessary justification for the law (see my Commentary mentioned above).  None is offered!  It cannot be a simple, it’s more convenient to do it this way.
  2.  The bill contains too broad a wording to satisfy judicial scrutiny and unconstitutional.

 

With all due respect to Senator Kavanagh, this is a poorly thought out and worded bill, and should be withdrawn ASAP.  The Rules Committee must not accept this bill as constitutional.

PS.  As many of you may not know, I am not a lawyer.

 

 

Published in: on February 4, 2017 at 2:28 pm  Comments (4)  

Disappointingly sad performance by AZ Coalition lobbying for reforms

I was impressed by Arizona Senator Kavanagh’s unsolicited comments at the Jan. 25th meeting on SB 1113[1] that there is evidence of coerced agreement to be bound by the CC&Rs, and his acknowledgement that there are arguments questioning the consent to be bound to that effect.  He must be reading my posts on this issue,[2] or being informed of them.  However, I am disappointed by his, and Senator D. Farnsworth’s, failure to enact remedial legislation; and the failure of that alleged homeowner’s group, Arizona Homeowners Coalition, to also lobby for remedial legislation.

Dennis Legere, representing the Coalition, objected to the bill on the very profound argument that it was insignificant, especially when there were other more important issues. Yet, I didn’t see any support or bill addressing Kavanagh’s coerced agreement statement.  However, he argues for more homeowner involvement in HOA rulemaking, a function of the Rules committees and/or board. Where is the bill for fair elections to the board to remove the existing bars to meaningful participation and make this a reality?[3]  He then makes the untrue statement that HOA rules dominate the CC&Rs and bylaws.  Say what?

Since the Coalition opposed Kavanagh’s sponsored SB 1113 on such grounds, Kavanagh indicated that he  will take another look at his other bills to see if he will support them.  WOW! There are some good bills that need passage, and some bills that the Coalition failed to recommend.  One bill, SB 1240, by Kavanagh, needs to be withdraw as it is facially unconstitutional.[4] But, Leger and his group see no evil. If the group decides to oppose this bill I’m fine with that but I will not speak against this bill [SB 1240] as a representative or an individual.”[5]   A sad performance by Legere, sad indeed.   I’m at a loss to understand Legere’s rationale.

I hope Senators Kavanagh and Farnsworth rise to level of supporting justice for homeowners and recognize that these fundamental ills of a defective HOA legal scheme, as I summarized in HOA Common Sense: rejecting private government,[6] need to be addressed and corrected.

 

References

[1] See video.

[2] See HOA Common Sense: rejecting private government, Consent to be governed, No. 4.

[3] See Democratic elections, No. 5.

[4] See Another AZ HOA bill constitutionality challenge looms: SB 1240.

[5] Jan. 27, 2017 email to the Coalition members.

[6] See Amazon webpage, http://www.amazon.com/dp/B00GL6J7BU

 

Published in: on January 29, 2017 at 11:26 am  Comments (1)  

Another AZ HOA bill constitutionality challenge looms: SB 1240

I could not believe what SB 1240 was amending.[1]  Shades of SB 1454 when in 2013 that bill was declared unconstitutional by the AZ attorney general in a settlement agreement.[2]  SB 1240 raises several questions:

  1. An unconstitutional delegation of legislative authority and power to private entity HOAs to regulate public streets: if the “local government entity has granted that authority [to regulate] to the Association.”

a.  SB 1240 does not grant legislative authority to the local governmental entity to defer to the HOA association;

b.  does not contain specific wording with regarding the powers and functions delegated to the HOA — “to regulate” is too broad a delegation of power.

c.  And does not contain specific wording with regarding the powers and functions delegated to the HOA — “to regulate” is too broad a delegation of power.

  1. Assuming (A) above is constitutional, the bill would make HOAs state actors, functioning for and in place of the “local governmental entity,” presumably the planning board. As such HOAs would be subject to the state and US constitutions as an arm of the state.

Lengthy presentations of constitutional law, state actors, and the delegation of legislative authority can be found in voluminous legal encyclopedias like American Jurisprudence (cited as Am. Jur. 2d) and Corpus Juris Secundum (CJS).  These constitutional questions can also be found in legal treatises (lengthy discussions) like in Constitutional Law (Norwalk and Rotunda, West Group) and in legal journals like Wm & Mary Bill of Rights Journal.

For my concerns here, I will make use of an Arizona case in which the CAI member law firm of Carpenter Hazelwood attempted to have OAH adjudication declared unconstitutional on several occasions.  The decision in Waugaman[4] served as the basis for the subsequent “rubber stamp” decision in Phoenix Townhouse and the supreme court decision in Gelb.[4]

In Waugaman the court held,

An administrative agency may resolve disputes between private parties if this authority is auxiliary to and dependent upon the proper exercise of legitimate regulatory power.  In the context of disputes between homeowners and homeowners’ associations, there are no defined regulatory duties vested in the Department or any other executive branch agency.  Thus, the legislature’s delegation of authority to the Department violates the separation of powers doctrine.

This decision reflects the essential requirement for a constitutional delegation of power to an agency, and logically, to any delegation of regulatory power to any private entity like an HOA.  SB 1240 should be withdrawn to avoid another black mark for the Arizona Legislature.

SB 1240 is a prime example of why the federal government must get involved in holding state legislatures to tow the constitutionality line.[5]

 

References

[1] SB 1240,  https://apps.azleg.gov/BillStatus/GetDocumentPdf/446408.

[2] See AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

[3] Troon Village v. Waugaman, LC2007-000598-001 DT, Maricopa Superior Court, Oct. 3, 2008.

[4] See the history presented in AZ OAH adjudication of HOA disputes held unconstitutional. The decision in Waugaman was ruled not binding by the AZ Supreme Court and it could not binding precedent as to other cases.  A few months later, the legislature revised the statutes to comply with the ruling and the constitutionality challenge became mute.

[5] See AZ legislature’s pro-HOA posture forces going to the Feds.

Published in: on January 26, 2017 at 4:39 pm  Comments (7)  
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