I have written many times about the loss in the protections of individual rights, freedoms, privileges and immunities that continues in our country. I wrote about the presumption that all laws passed by the legislature are constitutional, because, apparently, the sovereign can do no wrong. After all, the legislature is the voice of the people, isn’t it?
BUT, this false analogy to the king can do no wrong ignores the fact that the king was not bound by any constitution or charter, and was free to do as he pleased. But, we have, or are supposed to have, a constitution with restrictions on government. We also have the doctrine of judicial review of legislation, subjecting the laws to pass judicial scrutiny.
Of the three levels now part of the doctrine of judicial scrutiny, the peoples’ rights fall into one of three categories. The least protective is a legitimate, rational government interest (basically anything the government says is important to the people goes); the strictest is a compelling and necessary interest, reserved for explicit fundamental rights violations.
I have always been bothered about many HOA laws purported to be in the best interest of the people, yet deprive or deny a category of people, those living in HOAs, of their constitutional rights (free speech in many forms, due process protections) and the equal protection of the laws. In Arizona, for example, the horrendous SB 1482 omnibus (read ‘ominous’) bill did just that: granted special rights to HOA managers and left homeowners with unequal legal representation; rejected a private agreement to prevent crimes to allow real estate agents to be able to rent homes in HOAs, a long time frowned upon right.
In the recent Arizona appellate opinion in Vong v. Aune (non-HOA case that explains judicial scrutiny), the court held that, “Courts have found a legitimate purpose lacking where a regulation fails to protect the public from harm.” ¶ 18. Did I miss something? Did the Rules Committee that has the duty to check for constitutionality miss something?
Of course the game is still in favor of the government where the burden is put on the homeowner challenger. He must show that the alleged good for the community is overwhelmingly overridden by the damage to the HOA homeowner public class, and is contrary to public policy. It raises the question of one class of people losing constitutional protections so that others may . . . . may what?
Sadly, public policy as shaped by court and legislative decisions seems to be on the side of the HOA.