HB 2052 is a big step forward for HOA homeowners in AZ as it restores lost constitutional rights. Why then, isn’t your board supporting this important bill that is unquestionably in the best interests of the members? If you read your CC&Rs, almost all but not everyone contain a statement of intent and purpose directed toward the members, you will find wording similar to: “shall inure [take effect] to the benefit of the member and be mutually beneficial.”
Upholding constitutional protections provided by the US Constitution would seem to fit a board’s obligation. However,
“The political and social changes in our society brought about by the adoption and acceptance of the HOA legal scheme has created a new America of authoritarian, private governments known as HOAs. They function as independent principalities. The values, beliefs, principles, ethics, and morality of today’s America would shock the Founding Fathers.”[1]
HB 2052 follows in the footsteps of California’s SB 323 and several court opinions upholding HOAs as public forums that provide for protective free public speech on HOA governing matters.[2]
AZ Senate Rules committee must place HB 2052 on the COW agenda. This important bill extends constitutional protections to HOA members. It is awaiting a hearing by the Senate Rules Committee; time is running out! It was not heard on the 15th and today, the 17th. Bills have been killed by being held by Rules, which is a mandatory committee for all bills.
The public in general does not understand the functioning of their state legislature when it comes to its lawmaking powers under our democracy. Our Declaration of Independence, our ‘social contract’ between the government and the people, states quite clearly
“That to secure these rights [‘among these are life, liberty and the pursuit of happiness] governments are instituted among men, deriving their just powers from the consent of the governed.”
However, in many ways your legislature operates as the sovereign that can do no wrong. Take, for instance, the question of passing laws that are of questioned constitutionality. Long standing legal doctrine holds that all laws passed by Congress or your state legislature are presumed constitutional. This doctrine makes the primary function of legislative Rules Committees for checking constitutionality, among a minor formality issue, perfunctory and meaningless.
With the assistance of the Rules attorneys, the committees review the proposed legislation’s consistency with the United States and Arizona Constitutions and Arizona and federal law”[3]
In all my 20+ years I cannot recall any HOA bill being found unconstitutional by a Rules committee, even for one in 2013— by the same sponsor of HB 2052 — that was challenged in court and found unconstitutional.[4]
Members should be urging their boards to speak out. Members would be protected and enjoy such constitutional freedoms to openly discuss issues of public HOA governance with their fellow members if HB 2052 becomes law. Make it a law – write the rules Committee and demand passing on the bill for a debate and a final vote by all Senators.
References
[1] George K. Staropoli, HOA Common Sense: rejecting private government, StarMan Press, 2013.
[2] See Substantive HOA member rights advances in Arizona.
[3] As an example, from the Arizona Legislative Manual.
[4] See AZ Attorney General admits SB 1454 HOA to be invalid and without effect.
HOA Constitutional Government 