The constitutionality of legislation: AZ Gov. vetoes homestead exemption bill


It is a long established legal doctrine that legislation is presumed to be constitutional.  That is, a citizen must file suit with convincing evidence that the legislation is clearly unconstitutional.  And, our federal and state constitutions do not grant this power and right to declare legislation unconstitutional to any state governor.

In Arizona, SB1330 would have restored the homestead exemption to homeowners living in HOAs, removed by industry-supported legislation in 1996. Advocates argue that the 1996 law is unconstitutional since it reflected an intrusion into private agreements by the government, and it created a second-class citizenship since it removed the right to a homestead exemption that was granted to all homeowners long ago.

CAI, however, made the same argument of contractual interference not against their 1996 legislation, but against this bill and in opposition of righting wrongs of the past, and that any agreement was free from state intervention.

In conclusion, SB1330 is unconstitutional as it would impair the contracts that create consensual lien rights in communities that are governed by CC&Rs that create liens. (AZ CAI Call for Action email.) 

 Much to the shock and dismay of homeowner rights advocates, Arizona Governor Napolitano also entered the constitutionality debate and vetoed the bill on her version of constitutionality: “Today I vetoed Senate Bill 1330, which dealt with a variety of unrelated subjects. . . . This bill violates the single subject rule.” 

The Governor’s justification is based on a simple statement in the AZ Constitution. Let’s subject this requirement to “judicial review”, seeking the intent of this Art 4, Part 2, § 13 of the constitution. Section 13 reads,

Every act [bill] shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title. 

The AZ Legislature relies on Mason’s Legislative Manual, which is a legislature version of Roberts Rules of Order for guidance in fundamental legislative procedure.  Sec. 729 of Mason’s pertains to “Titles to Legislation.”  Mason states, in subsection 2, that the fact that there may be some “discrepancies or irregularities in the title . . . will not invalidate the legislation as long as there is no question of identity . . . .”  Subsection 3 adds quite clearly that, “when the object of an act [bill] is fully expressed in the title, the form or status . . . is immaterial.”

I can recall several CAI sponsored bills in past years that, more so than SB1330, amended 5 sections of Ch 9 and Ch 16, pertaining to HOAs and Condos, especially HB2154 signed by the very same Governor in 2005.  Both bills dealt with amendments to the Condominium and Planned Communities Acts. What is different about SB1330 from HB2154?  Does the Governor realize that she has played into the hands of the national trade group lobbyist for HOAs, CAI, that has been arguing that the bill is unconstitutional? 


Furthermore, the constitution does not grant powers to the Governor to declare legislation unconstitutional. That’s the well-founded role of the judiciary.  Perhaps it was her awareness that the courts hold all legislation to be constitutional, and that she sees it another way.  Or, some lobbying group convinced her that it was unconstitutional. Yes, she can veto a bill, but her justification for her veto of SB1330 raises eyebrows! The Governor is putting the burden on the Legislature to override her presumption of unconstitutionality, and her veto reflects a “see no evil” in the 1996 statute.

Yes, § 13 of the AZ constitution does say one subject, and yes, the Governor can veto bills. But in view of the historical intent and purpose of such a restriction the decision by the Governor to veto SB1330 is highly unreasonable and out of order.  The Governor needs to provide her real reason for her veto of this bill that attempts to correct an unconstitutional interference in private contracts, and an unequal application of the laws, by industry sponsored legislation in 1996. 

This is a sad day for Arizona, and a sad day for Governor Napolitano. 

Published in: on May 18, 2007 at 7:42 am  Comments (2)  

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2 CommentsLeave a comment

  1. This argument makes no sense whatsoever. The governor has a sworn duty to uphold the constitutions of the United States and Arizona. That means if she believes a bill (not a law, as you incorrectly describe it) is unconstitutional, she MUST refuse to sign it, or MUST veto it. The presumption of constitutionality you refer to has nothing to do with the legislative/executive process of signing bills into law. It applies to judicial proceedings, and no court of law has ever ruled otherwise.

  2. […] I wrote on May 18th  (see Veto), […]

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