Former CAI president, and attorney, J David Ramsey published an article, “Twin Rivers Analysis”, attempting to emphasis that homeowners do have constitutional rights in HOAs, and that we need judicial review to protect those rights. Of course, he somehow alludes to the awkward argument that as a government, the HOA couldn’t set restraints on homeowner rights, which surprise, surprise, are for the good of all and not to protect individual rights. (My emphasis).
The Court emphasized that the character of the restriction is of importance, not the identity of the party who would impose the restriction. Thus, the question of whether a particular covenant in a contractually-created community violates an owner’s constitutional rights of expression finds its answer in well-established property law jurisprudence. Only in this context, will we be guided in such a way to balance all constitutional interests and evaluate the reasonableness of any one restriction in a private Community setting.
The Court also upheld our sacred rights of free speech and expression by understanding that, in an interdependent community of people who chose to reside in a common interest community, these rights of expression and speech do not only exist for one, but for all.
Right out of the Restatement Laws, Third Property (Servitudes) § 3.1. Doesn’t that sound like socialism — “for the greater good” — and at odds with American values and beliefs of individual rights and liberties. You know, why we have the US Constitution and Bill of Rights to restrict government, public or private, from abuse of power.
The quote about “contractually-created community” avoids questions of the validity of the contract, and whether the property-servitudes doctrine of constructive notice satisfies the required level of judicial review for the loss of constitutional rights. (If you don’t quite understand this, Ramsey, as an attorney and past CAI president, sure as hell does). Furthermore, does the taking of property and other rights by an amendment without the homeowner’s consent also satisfy judicial review requirements? Or, the absence of an explicit, signed consent to an actual and specific right being surrendered rise to the required level for judicial review. (Here, in spite of the word “contract”, the HOA is treated as the equivalent of a municipal government).
The issue of consent and judicial review was ignored by the NJ Supreme Court, and in Ramsey’s inadequate analysis of Twin Rivers. As mentioned elsewhere, the repeated assurances that HOAs are indeed subject to the Constitution falls flat on its face when the courts continue to place property law superior to the Constitution as the new supreme law of the land.
When a private property owner imposes limitations on free speech, however, and a court overturns those limitations, there may well be an interference with constitutionally protected property and privacy rights. The New Jersey Supreme Court understood this distinction and took great pains to express the limited scenarios under which private property owners will be treated in a manner similar to the government.
For these reasons we suggest that it is inappropriate to interpose statements of legislative intent concerning constitutional rights in UCIOA or any other legislation affecting common interest communities.
These arguments are lost on me. If a government interferes there’s no loss on rights, but when a private person does then he may lose his rights? What about these homeowners? Didn’t they lose their rights? Or, is Ramsey arguing that the fictitious person, the HOA, was protected and its constitutional rights were protected by this decision? What’s his point? In his conclusion, Ramsey restates CAI’s opposition to court interference by means of judicial review like here in Twin Rivers (seems he’s breathing a sigh of relief that the decision went against the homeowners).
Ramsey spends much time to defend the use of Schimd (NJ case) by the court to arrive at its decision, while omitting any reference to those other tests of state actors set forth by the US Supreme Court that have definite application to this case.
Read Ramsey’s article with reference to the independence of HOAs from the Constitutional protections of individual rights versus communal rights. Does he clearly demonstrate that the Constitution really protects your rights within a private organization, in spite of his lengthy attempt to convince the reader otherwise.
A link to Ramsey’s article appears in the CAI Ungated blog: http://cai.blogware.com/blog/_archives/2007/8/7/3144730.html