Legislative intent of the framers and statute constitutionality

Many times, regarding the constitutionality of statutes, I have come across the long standing legal doctrine that the statute is presumed constitutional and that the challenger bears the burden of proving otherwise.

The following opinion in Biggs speaks to statutes that are not a violation of fundamental rights, leaving the fundamentality question unanswered.

Determining constitutionality is a question of law, which we review de novo [ a new case analysis]. When the statute in question involves no fundamental constitutional rights . . . we presume the statute is constitutional and will uphold it unless it clearly is not. (¶ 9).[1]

The justification for this doctrine is explained in the Arizona appellate court opinion in Vong,

“The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.[2]

In other words, our elected representatives, who had enabled the challenge statute to begin with, will react to the outrage of the people and correct their legal folly. Yeah, right! Not in this dysfunctional climate!  The courts will not interfere, not even when the statute is a horrendous violation of the Constitution.

With respect to determining constitutionality, the court must examine the statute itself, its wording and grammar (including punctuation), and the intent of the drafter or framers of the statute. The intent of the legislature, with respect to HOA-Land statutes in all states, has become very important as numerous constitutionality challenges have arisen lately.  The Court in Biggs made the importance of the intent of the framers very clear,

The Constitution should be construed so as to ascertain and give effect to the intent and purpose of the framers and the people who adopted it. We give effect to the purpose indicated, by a fair interpretation of the language used, and unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning. (¶ 10).[3]

The intent and purposes of the Framers was long upheld by the FCC as concerning the media providing equal opportunity to reply on public issues.  “The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues.[4]

But President Reagan did not see it that way when he vetoed fairness legislation in 1987.

“This type of content-based regulation by the federal government is, in my judgment, antagonistic to the freedom of expression guaranteed by the First Amendment,” Reagan said in his veto message. “In any other medium besides broadcasting, such federal policing of the editorial judgment of journalists would be unthinkable.”[5]

As it has come to pass, the power of the people has been slowly eroded and replaced by that of the business special interests.  In Arizona, for instance, the legislative bill manual advises against inserting “legislative intent’ wordings as it may require the sponsors to defend themselves at a later time. “4.19. Generally, intent sections (also called “purpose” or “legislative findings” sections) should not be used in a bill.[6]

And so, the people, and especially the “citizens” of HOA-Land, are faced with an insurmountable obstacle to fairness and justice when attempting to challenge the constitutionality of HOA statutes.



[1] Biggs v. Betlach, No. CV-17-0130-PR (Ariz. November 17, 2017).

[2] Vong v. La Vie,  CA-CV 13-0423, (Ariz. App. Div. 1, 2014).

[3] Supra, n.1, ¶ 10.

[4]The death of the Fairness Doctrine and the rise of HOA-Land media bias”.

[5] Id.

[6]  The Arizona Legislative Bill Drafting Manual 2017 – 2018.  

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"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

2 thoughts on “Legislative intent of the framers and statute constitutionality”

  1. Apathy is deliberately cultivated by the association-governed community. As George explains, there are built-in obstacles to fairness and justice in the HOA, written into the Declarations (CC&Rs) and Bylaws. For example, votes are allocted to the property, not the person. Developers get weighted votes to extend control of the association. The HOA has the collective finanical resources of the association to purchase insurance coverage and to pay for attorneys to go after homeowners and to defend the association (and the board), with the intent of wearing down the homeowner and making it cost prohibitive to assert or defend rights in court.

    A small minority of homeowners have the financial resources, time, and intestinal fortitute to fight for their rights in civil court.

    And when the court grants the Association the benefit of the doubt, it becomes the burden of the less sophisticate, less-well-funded owner to prove otherwise.

    This is what creates apathy — most people, seeing no light at the end of the tunnel, will give up the fight or avoid going down that road to begin with. Many people simply move out, and sell their property if they can. If not, they rent it out, or walk away and let the bank take it back.

    Geore, thank you for making the point that the legal playing field is unequal, and Legislators, and some executive leaders with veto power, have enabled this inequality to go unchallenged.

  2. Homeowners need to stand up for fairness, the law and the truth. When any homeowner feels that their property rights are being violated, the law will protect them if they take legal action. Is it the constitutional rights that are being violated or is it apathy among homeowners that are eroding their rights?

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