It is my strong belief that the HOA legal model of local government played a part in the demise of democracy in America[i] has been greatly assisted by the recent publication Private Metropolis.[ii] In my prior post on Private Metropolis,[iii] I was very pleased by the opening Introductory paragraph,
The opening introductory segment encompasses a wide description of special governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 27% of the population — according to CAI — as residents), that “became, in effect, shadow governments.”
Unfortunately, these highly descriptive political concepts used in this very broad study of local government failed to appropriately address the form of local government known as HOAs. Scant attention is given to these associations by the authors. In the 312 pages “homeowner association” is mentioned just once and “CID” twice. But “shadow government” and “quasi-government” and “special districts” are tossed around quite frequently. Readers, having read the very enticing title, will be greatly disappointed by its failure to deal with the most direct affront to the eclipse of local democratic government: the HOA legal model of governance that has been supported by all state legislatures across this country.
HOAs, my generic term for community and homeowners associations, satisfy the fundamental definition of a political government. Black’s Law Dictionary (7th Ed.) definition separates the men from the boys: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.” And that is the unique feature of political government that distinguishes an HOA from a business, a non-profit charity, a club, a union, etc. I believe that the decision to form HOA governance outside the domain of public government was intentional to avoid constitutional restrictions.[iv]
They are a de facto yet unrecognized form of local government — other forms being mayor-council, council-manager — born and created as private entities, and as such, have escaped, for the most part, under the common defense prohibiting any ”law impairing the obligation of contracts.” Although the other forms of public local government are subject and held to the Constitution and the laws of the land. HOAs meet every criteria set forth by the authors as indicated above and epitomize the eclipse of local democratic government.
The authors appear to admit the failure of the ivory tower “philosopher kings” (my terms) to actively participate in preventing the fall of local democracy: “Instead, even scholars who study local governments [only recently realized] the degree to which quasi-public institutions are insulated from the democratic process.” That applies strongly to authoritarian HOA governments.
[i] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).
[ii] Private Metropolis: the Eclipse of Local Democratic Government, Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).