AZ SB 1088 is an unconstitutional and selective impairment of a contract bill

Arizona’s SB 1088 bill seeks to invalidate CC&Rs that require approval by a homeowner to allow any visitor access to the homeowner.  It specifically deals with — and is only meaningful with respect to gated communities which are gated for a very good reason — not hindering process servers access to a homeowner defendant.  It is punitive with a $250 “civil penalty” for anyone violating this law.

Background 

Under our laws and judicial system a plaintiff must service notice of a lawsuit upon a defendant as required by the Constitution.[1]  It is well known that there are people who act to avoid being served notice, which stops any lawsuit from moving forward. However, the law does allow for posting the summons notice to the public notices page of a newspaper in the event the defendant cannot be personally contacted.[2]

Impairing the obligation of contracts

The proponents’ argument would be generally along the lines that “due process under the law” triumphs over any contract infringement violation as a matter of public policy and for the general good of the people. An HOA covenant cannot hinder constitutional due process of law and the equal application of the law to a person, not necessarily an HOA, who is suing a defendant in such an HOA.  It’s not fair they would cry, referring to the greater good served outside the HOA.

But, the bill seems to be unnecessary as there are other means to satisfy civil procedure process servers.  It would also not pass judicial scrutiny[3] required to deny constitutional rights under contract infringement.  The bill seems to be sponsored as a request from a constituent facing some problem that lacks merit, considering the alternative methods available for service notice by process servers.

Selective enforcement of the law

It is long held doctrine that a government cannot pick and choose what laws to enforce or to ignore, and still be seen as a legitimate government.  The entirety of the covenants in a declaration of CC&Rs — allegedly constituting the voice of the people in a private contract to not be bound by the Constitution and the laws of the land — contains many, many covenants that violate the protected rights of the people.

Yet the state stands idly by and does nothing to end these private contractual violations of the constitution’s requirement for the equal protection of the law.  The CC&Rs are a mockery of due process protections, of fair elections, of eminent domain protections, of cruel and unusual punishment by foreclosure rights, of contract law misrepresentation and full disclosure violations, of the failure to provide civil penalties against HOA violations of the law, etc.

They are either ignored or have the “blessings” of the legislature as a result of laws that coerce compliance with the HOA, cooperate with the HOA, or closely interact with the day-to-day operations of the HOA. Any of which would make the HOA a state actor subject to the Constitution.

SB 1088 is a selective impairment of contract obligations while other infringements of the laws are allowed to stand. Adopting this bill would be a mockery of the law.

 

References

[1] 14th Amendment, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

[2] Ariz. R. Civ. P., 4.1(n). “Where the person being served . . . has avoided service of process . . . then service may be by publication  . . . . “ Also, Rule 4.1(m) allows for “alternative or substituted service.”

[3] Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.  See, in general, Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.

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Published in: on January 27, 2016 at 4:58 pm  Comments (1)  
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One CommentLeave a comment

  1. Excellent idea to have this bill. Process servers should not be interfered with. In our community, the property manager alerts the Board members and even if they are home they tell him to say they are not at home to prevent from being served. He should get fines $250 each time he interferes with a legal process. I support this bill.


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