How legislative Rules committees abort democratic HOA reform bills

In the interest of public education on the functioning of state legislatures, this paper presents information on the rules governing state legislatures — using Arizona as a representative example — that affect passing bills into law.  I focus on the Rules committee’s powers to obstruct the voice of the people, and how it can prevent — kill — HOA reform bills by the actions of the political party leaders.

The powers of the Rules committee are undemocratic and authoritarian  in nature designed to thwart, apparently, the folly of the voice of the people.  We see the same undemocratic, authoritarian powers granted to HOA boards to an even greater extent,  The national lobbying group’s promotion of the “business judgment rule,” and acceptance by the courts, is a prime example.[1]

Exhibit 1 details the Rules powers that can prevent HOA reform bills, and any other bill not liked by the powers that be, from a hearing and vote by the full chamber — by the people’s representatives. As I wrote earlier[2], Arizona’s HB 2052, a bill that has in reality been killed in the Rules committee after unanimous approval by the House and Senate government committees, is a prime example of this misuse of authority.

The Senate Fact Sheet “intro” paragraph misrepresents the content of the bill:

“Expands statutory restrictions on condominium unit owners’ association and planned community association (HOA) regulation of political signs to include signs related to certain community activity. Prohibits an HOA from prohibiting door-to-door community activity”.

Of the 8 listed “Provisions,” 2 are technical, 2 relate to political signs, and 4 — given a short sentence in the “intro” —  expand on HOA restrictions and prohibition’s protecting free political speech and expression, in the HOA public forum,[3] as curtained in my earlier “Senate Protects” posting.[4]

. . . .

The Arizona Legislature, and each and every state legislature, is  not a sovereign that can do no wrong, but has duties and obligations sworn to under oath “to establish justice . . . and secure the blessings of liberty” for the people of its state. It cannot demand respect but must earn it through good deeds.  Passing HB 2052 into law would be a sign of good faith that would earn the respect of the people.

Exhibit 1.  Arizona Legislative Council publications

“In the Senate, bills are usually not “held” in the Rules Committee for partisan or political purposes; bills which go into the Rules Committee are almost always reported out. In the House, the Chairman of the Rules Committee can “hold” (read “kill”) a bill simply by not giving it a hearing. (p. 52).

“The options of the committee chairman are a) Hear the bill and vote on it, b) Hear the bill but take no action, c) Assign the bill to subcommittee, d) Not hear the bill.  (p. 39-40).”

“The Role of the Rules Committee,”  State Senator Randall Gnant, From Idea to Bill to Law (2000). (As of April 2021).

“Each measure is assigned to the Rules Committee of the house through which it is progressing . . . . The Rules Committees assess the constitutionality of the proposed legislation. Unless they are withdrawn or discharged, all bills must pass the Rules Committee before they are heard on the floor. (p.41-42).

“An Active Calendar of the Committee of the Whole (so called in both houses) consisting of bills the Speaker or President selects for consideration by the respective Committee of the Whole (COW).

“A calendar consisting of all bills and other measures that have been reported from the committees. In the House this is called the “House Calendar.”  In the Senate it is called the “Calendar of the Committee of the Whole.” These calendars are simply a list of bills and other measures that are ready for further action by the full chamber.” (p.42-43).

Arizona Legislative Manual 2003 Edition, Arizona Legislative Council (2003). (As of April 2021).

Notes


[1] See, Reorienting the HOA board: business judgment rule (2020).

[2] See, AZ Senate protects HOA misconduct rejecting HB 2052; Arizona HB 2052 restores homeowner constitutional speech protections.

[3] See court holdings: Calif. holds HOA elections as protected free speech public elections (2019); NV supreme court upholds HOAs as public forums (2021).

[4] Supra n. 2, AZ Senate Protects.

Why isn’t your HOA board supporting AZ HB 2052?

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.

CA’s SB 407 is another law providing constitutional rights

I was reminded of  my oversight in not mentioning California’s SB 407 (law in 2018) when referring to California’s constitutional rights legislation.[1]  SB 407 dealt directly with free speech issues while SB 323 dealt with extensions to fair elections.

Thanks to Marjorie Murray, President of the very active homeowner rights organization, Center for California Homeowner Association Law (CCHAL).[2] CCHAL has long fought CAI-CLAC, the voice of the collective CAI legislative action committees in California. (CAI-CLAC opposed SB 407).

CAI-CLAC is very slick in presenting a positive face to naïve homeowners and those seeking info on HOAs in California, known as CIDs. The title of its CAI Government Affairs Blog email release of March 2, 2021 reads, “Grassroots Advocacy Initiatives Are More Essential Than Ever.”  But many readers may miss the important appeal as stated in the email:

“Each year, CAI advocacy leaders engage with and encourage members across the country to connect with their elected officials and advocate on behalf of the 73.9 million Americans currently living in community associations.”.

This is a misrepresentation and a misleading assertion that CAI speaks for all persons living in an HOA in California. NOT SO!  (See HOA homeowner membership in CAI is a mere 36%).  As I’ve repeatedly urged others to do, such statements must be challenged and rebutted.

Notes


[1] See Substantive HOA member rights advances in Arizona.

[2] Murray commented: The California legislation that re-affirmed the First Amendment rights of association owners was SB407, sponsored by the Center for California Homeowner Association Law and carried by Senator Bob Wieckowski. 

Now law, it affirms the rights of homeowners to assemble peacefully, to communicate freely with their neighbors on matters of mutual concern, and to invite others onto the association campus.  It was signed into law in 2018.  CCHAL organized a public forum on the bill after it became law and videotaped the forum. Here’s the link to the text: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB407;

AZ free speech bill HB 2052 on track

The substantive Arizona homeowner reform bill, HB 2052, has been assigned to the Senate GOV committee. No hearing date has yet been assigned.  In short,

“Overview Stipulates that a unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community.”

See Arizona HB 2052 restores homeowner constitutional speech protections

Effective presence in support of legislation requires immediate support to the assigned committee to let the members know before the public hearing. It is this private committee time where decisions are made. This advice can be found in Colorado’s Morgan Carroll’ book and discussed in Colorado senator’s guide to effective HOA legislation.   

Many may not remember Ugenti’s conduct in 2013 but I have the hope that justice will prevail for homeowner with 2052.

“The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.”

Here are the committee’s email addresses.  AZ Senate GOV committee 2021

Sonny Borrelli  sborrelli@azleg.gov 
Juan Mendez  jmendez@azleg.gov 
J.D. Mesnard  jmensnard@azleg.gov 
Jamescita Peshlakai  jpeshlakai@azleg.gov 
Warren Petersen  wpetersen@azleg.gov 
Martin Quezada   mquezada@azleg.gov 
Kelly Townsend, Vice-Chairman,  ktownsend@azleg.gov 
Michelle Ugenti-Rita, Chairman   mugenti-rita@azleg.gov 

Limited purpose public HOA board; slander; AZ HB 2052

This writing is not meant to scare homewners from expressing their political free speech rights regarding HOA governance issues, but to observe certain precautions.

I’m disturbed by the appellate court’s rejection of theappeal in Tarter v. Bendt with respect to limited purpose public figure immunity pertaining to complaints against an HOA. The homeowner’s  complaints consisted of verbal statements, written communications, and a newsletter.

If Arizona’s HB 2052 (to be voted on by the full House), as a start,  were law today I believe your outcome would have been favorable. In part, the bill  

Allows a member or group of members to organize to discuss or address planned community business, including the following: a) Board elections or recalls; b) Potential or actual ballot issues; c) Revisions to the community documents; d) Property maintenance e) Safety issues; or f) Any other community business or actions. (Sec. 1, 2)

(See more, Arizona HB 2052 restores homeowner constitutional speech protections).

My nonlawyer view is that the case was a harsh application of the laws in an instance of an entity that functions for all intents and purposes as a local government;  allowed to operate outside constitutional protections. It is not  an “as usual” slander/libel situation but was treated as such in a memorandum decision.

The crux of the opinion was,

The parties stipulated that Mr. Tarter, as the HOA president, was a limited purpose public figure. Thus, the Tarters were required to prove that Mrs. Bendt’s defamatory statements were “made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

In spite of the homeowner’s loss, the case can serve as a hard lesson to other homeowners, warning them of the dangers of rambling against their HOA and board of directors,  as the Court saw it. It serves warning that ALL relevant issues be brought before the court at trial as they may not be allowed in an after-the-fact appeal.

The Court summarized the defamatory statements, as charged by the HOA,  consisting of:

The Tarters introduced evidence that Mrs. Bendt called Mr. Tarter “idiot,” “fool,” “spineless,” “disgusting,” “chicken shit,” “lowlife,” “low-class sneak,” “unethical,” “lazy,” “weak,” and “a complete fake” in front of fellow HOA members. . . . . Mrs. Bendt also disparaged Mr. Tarter’s legal education, insulted his alma matter, referred to him as a habitual liar, and unethical. Mrs. Bendt accused Mr. Tarter of violating his attorney ethical obligations, and wrote that he could be disciplined by the Arizona State Bar and investigated by the Attorney General (“AG”).

As the Court saw it, very important issues of compensatory and punitive damages were raised and found in favor of the HOA.  The court allowed large sums, totalling $1,500,000, for nonmonetary damages as harm to reputation and emotionsl stress, and others, so beware! 

Support HB 2052 to be soon voted in  the House COW; date to be set.

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