I just read the 23 page US Supreme Court amicus brief[i] for The Cato Institute in Mariner’s Cove v. the United States, No. 12-1453, written by an illustrious group of legal-academic aristocrats. Let me make it quite clear at the start that I am not part of that group, or even an attorney, so I don’t have a built in “good ol’ boy” bias.
Selective citations and quotes were made from a number of cases, journals, and books including those of Evan McKenzie, Paula A. Franzese, and Steven Siegel. (They wrote a critique of the NJ Supreme Court Twin Rivers decision, and other works, but you wouldn’t know that from the quotes). Also quoted was Susan French who made that comment, not quoted in the brief, in the Forward of The Restatement (3rd) of Property: Servitudes that, “Therefore this Restatement is enabling toward private government.”
My activist take on the brief can be summarized quit simply as:
1. HOAs are growing faster than the rabbit population.
“The number of citizens opting to live in community associations—and the extent of commerce affected by such arrangements—is sure to keep growing, as the majority of new housing built in the past three decades is subject to association arrangements.”
2. The people love HOAs. “More and more citizens choose to enter into these property-rights-sharing arrangements because they provide substantial benefits.”
3. HOAs and local municipalities have a beneficial symbiotic relationship for the betterment of the community.
“Community associations provide a variety of private and public benefits, including increased property values, greater efficiency in the delivery of services, and lower costs to the public.
“Community associations offer such benefits to local governments that developers are increasingly required [sic] to structure proposed housing developments as community associations as a condition of approval.”
4. That it’s only fair for taxpayers to pay the HOA for the loss of income.
“By shifting a greater burden for paying for such services to the remaining members of the association without compensation, the Government’s taking here presents a textbook case of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, as it does from technical concepts of property law.”
Now, from these quotes as a good sampling, the 9 Men in Black cannot help but think that HOAs are the next best thing to heaven on earth. They would have no clue whatsoever that there is “trouble in River City.” I would venture that they have no knowledge of the happenings and goings-on in HOA-Land, and would have to rely on the self-serving Cato amicus brief.
What is needed is a response showing the other side of HOA-Land that can be obtained from some of the same authors used by Cato, McKenzie, Franzese, Siegel and others. Court cases can be cited like the horrendous Poris decision by the Illinois Supreme Court, and the Wittenberg decision by the California appellate court, to name a few. Or how about asking the Justices to think about, and asked to explain, The Truth in HOAs Disclosure[ii] as a starting point.
We have an opportunity to be heard by the US Supreme Court!
WHAT IS IMMEDIATELY REQUIRED IS TO INFORM THE SUPREME COURT JUSTICES of loss of rights, privileges and immunities of citizens under a despicable argument of a bona fide and legitimate consent to be governed. I am not a lawyer. I cannot file an amicus brief!
This is a very good time to act and be heard!