HOAs as separate but equal public governments

As I far as I could determine, from my non-lawyer research, the issue that constructive notice meets the US Supreme Court judicial review tests for the surrender of constitutional rights has never been specifically challenged. The complex issues relate to the taking of one’s rights and property under the 5th and 14th Amendments without “due process“, or a violation of the “equal application of the laws” doctrines.

Under procedural due process, levels of review have been stated regarding any such “takings” — were proper procedures followed in the taking. Under substantive due process, was the Constitution violated?

In procedural due process, for example, minor rights need only meet the “government interest” test — it’s in the interest of the government to take away such rights, as putting up signage on one’s property, or notice of an HOA violation. And, under substantive due process, there are the “fundamental rights” that are NOT found in the Constitution, but have been determined by an activist Supreme Court.

US v. Carolene Products Co., 304 US 144 (1938) (the landmark Footnote Four decision); Planned Parenthood v. Casey, 505 US 833 (1992) (Footnote Four Plus). For a general discussion, see Constitutional Law, Sec. 11.5 – 11.7, Nowak and Rotunda, (West Group 2000).

In regard to HOAs and planned communities, the task before advocates is very similar to the landmark civil rights cases relating to “separate but equal” facilities in Plessy v. Ferguson, 163 US 537 (1896), which was overturned in part with respect to education by Brown v. Bd. of Educ., 347 US 483 (1955):

Are private HOA governments separate but equal to public government?

Lower courts have implicitly said “Yes” by their decisions to uphold the loss constitutional rights, without examining or raising the issues of explicit agreeement, sufficient notice and a legitimate government interest. It appears that our courts have held that,

“No, Americans do not have a right to public government.”

Published in: on November 14, 2006 at 4:47 pm  Leave a Comment  

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