guest blog by Robert E. Frank, Colonel, USAF (Ret.)
Founder, HomeOwnersCoalition.org & Veterans Advocate
On American Independence Day 2014, is it time to implement “Equal Justice Under The Laws” For HOA & Condo Owners?” Are legislatures willfully violating our citizen rights? If so, why?
– Federal Laws require all states to comply with the US Constitution as the Supreme Law of the Land.
– States are required to support and defend the US Constitution when passing statutes and implementing regulations.
– States, counties and cities are required to support and defend the US Constitution in their statutes, regulations, rules, codes, etc. that bind all citizens.
– Local government rules, regulations, codes, etc. establish the controlling concepts and limitations in CC&Rs for when, how and by whom Homeowner and Condo Associations are established, maintained and how the property owners are governed in addition to standard government restrictions.
– So, why can the state and local government authorities legally allow developers to implement CC&Rs that violate the Constitutional rights and protections of HOA and Condo property owners? Is this not morally deficient, if not exactly illegal?
– Is this not a clear case where the government is violating its own agreements and mandates to “EQUALLY” support and defend the Supreme Law of this Land for all citizens?
– Does claiming that because HOAs and Condos are created as special, quasi-governmental corporations there is no moral or legal obligation to protect all citizens equally under our Supreme Laws stand up to even plain old common sense arguments?
– How can state government authorities, on one hand, rigidly control the creation of property and the associated governance regulations and rules of HOAs and Condos; but, on the other hand, (much like the Pontius Pilate of the Bible) ignore the fact that they are directly aiding and abetting the conscious denial of equal justice under the laws for HOA and Condo owners?
On American Independence Day, please explain why such crass injustice can be tolerated and ignored by so many in this industry?
Why won’t every single one of you Americans reading this topic stand up and demand “equal justice under our laws” for HOA and Condo owners?
None of the following is to be considered legal advice.
When the State interferes, it becomes a “state action” per Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1 (1948)
1. The seminal case on the matter of HOAs infringing on homeowners’ fundamental rights is Shelley v. Kraemer, 334 U.S. 1 (1948). In that case, the Supreme Court held that a state court’s enforcement of a racially restrictive covenant constituted sufficient action by the state to satisfy the Fourteenth Amendment’s “state action” requirement. Racially restrictive covenants, like covenants that restrict free speech, infringe on a fundamental right. “Enforcement of private agreements by the judicial branch of government is state action for purposes of the Fourteenth Amendment, as the Highest Court in the land declared it to be in Shelley.” Gerber v. Longboat Harbour North Condominium, Inc., 724 F. Supp. 884, 887 (M.D. Fla. 1989), vacated in part on other grounds by 757 F. Supp. 1339 (M.D. Fla. 1991).
United States v. Price, 383 U. S. 787, 794 (1966):
Moreover, a private party [such as an HOA attorney or property management company] involved in such a conspiracy, even though not an official of the State, can be liable under § 1983.
“Private persons, jointly engaged with state officials in the prohibited action, are acting `under color’ of law for purposes of the statute.
To act `under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents…
I have long stated that state lawmakers and state legislatures have been violating the US Constitution for years. Here in Arizona, I have filed a lawsuit this year over (SB1482 HOA Omnibus), as several portions of the bill clearly violates not only the US Constitution, but the state constitution as well.
The HOA laws that are being passed here in Arizona, to “protect homeowners rights,” are nothing but a myth. Special interest groups such as the CAI have pretty much bought and paid for almost every state legislature in the land. The problem is, no-one is challenging these laws.
Dave, Please keep us advised on the results of your lawsuit. We can only hope in AZ that Ugenti who pushed this bad bill is ousted out by Bob Littlefield in November. Littlefield will not be on the take like these other AZ politicians.
It has been claimed that the denial of Constitutional protections and rights to HOA and Condo owners and other occupants has been no accident or oversight. Such apparently illegal and deceptive denials by the trade associations and legislatures are due to those who are working to make executive branch authority superior to the other two branches.
It is said that replacing “Constitutional Law” with “Administrative Law” is a long-term, carefully calculated plan by progressives who demand that the Constitution become a “living document” subject to major changes by those in government power.
Anyone have any evidence of such allegations other than just basic observations of industry behavior over the past half-century?
It has been said that last year’s federal judge ruling that Administrative Laws are unconstitutional points the way towards potential progress in cleaning up HOA operations and make them subject to local controls consistent with other types of private property ordinances.
Anyone like to contribute an opinion on how to take advantage of this important action? Would it be possible for a national class action suit to challenge/make null and void state HOA/Condo statutes?
Should all common interest community statutes be eliminated and counties and/or cities be required to pass local ordinances to provide local rules if/when absolutely necessary?
Robert E. Frank, Colonel, USAF (Ret.)
Former Nevada HOA Board Member and Former NV State Commissioner for HOAs/Condos