As a result of a conflict over bees and whether local ordinances or HOA CC&Rs governing beekeeping prevail, the Tennessee Attorney General is being asked his opinion on HOAs as public entities. Rep. Glen Casada has sought a clarification from Tennessee Attorney General Robert Cooper “for an opinion on whether or not the HOA is considered a political subdivision of the state.” (The AG was appointed by the TN Supreme Court, and is an officer of the court and not the Executive branch).
How shall the AG decide? Take a very narrow view and simply declare that the HOA is a nonprofit corporation under corporation laws and not a municipal corporation; therefore it not a state entity. If so, how does he address the fact that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck?” “A rose by any other name is a rose.” A tax by any other name, assessments, is a tax. A law by any other name, regulations or covenants, is a law. In fact, British municipal law equates the term law with by-law. “3. British . an ordinance of a municipality or community.”
Let us assume that the AG takes a firm stand and enters into the foray. The safest approach is to turn to the ancient public functions test of 1946 with respect to a company town and free speech. His decision would deny that the HOA is a public entity, probably, since the HOA doesn’t meet the public functions test.
This view has always disturbed me when I examine the state’s municipality laws on incorporation of towns and villages. They ain’t got no such tests, yet they are declared public entities if they declare their allegiance to the Constitution and are approved by the state. I guess it’s OK to use double standards when it comes to HOA governments.
Are there any other criteria that bear on whether or not an entity is a public entity, or that it is a state actor acting as if it were indeed a state entity? The law is rather extensive on state actors and state action. In today’s environment with the attitude of “no government interference,” applying state actor designations to HOAs will be a difficult task since it would extend the reaches of “big government.” But, when dogma prevails over facts we must fight for “truth, justice and the American way.”
US Supreme Court holding in TN state actor case
The US Supreme Court has set several criteria for state actions and state actors, among them: a “close nexus,” a “symbiotic” relationship, “state’s exercise of coercive power”, “entwined with governmental policies”, and “significant encouragement, either overt or covert.” They are discussed, in of all cases, in Brentwood v. Tennessee Secondary Schools, 531 U.S. 288 (2001).
I hope Attorney General Cooper will uphold the US and Tennessee constitutions, knowing full well that even homeowners living in HOAs are US citizens and citizens of the State of Tennessee, with full rights, privileges and immunities.