Month: October 2023

Understanding the Legislative structure

Getting HOA reforms passed in your state legislature requires an understanding of the structure of legislatures  — how they are organized and structured.  It may surprise you that they can be understood as just another business structure, except with 2 boards of directors (BOD) — the two branches known as the Senate and the House.  The power and authority of each BOD is specified in the Constitution.

As with any business organization, there is a hierarchical structure between bosses, employees, committees, and subcommittees with the chairs of each having the power to affect the decisions of the committee to pass legislation; in many cases absolute power. A committee chair can refuse to hear a bill, hold it from being heard, or allow a vote.

At the BOD level, the party in power in each branch rules and runs that branch with broad authority to assign committee chairs from its party members, hear a bill in COW (committee of the whole where discussion is permitted before the final vote) and in the final vote. The power lies in the Senate President and the Speaker of the House, and in the Rules Committee. I’ve witnessed such power many times in which the majority party leaders were against the bill and withheld it from being heard.  

Following the business model, a legislator is just an employee of his party and has more or less ambitions to rise up the ranks to chairs of important committees and to party leadership. And then maybe to other government positions like AG or Governor or a congressional representative. All in his best interests, not yours!  Only if HOA reform helps him advance in the party’s standings.

Your legislature most likely has a publication under the heading “How a Bill is Made Law” that describes the process in general.  Also, I strongly recommend the book, “Take Back Your Government” authored by former CO Senate President Morgan Carroll that provides how grassroots reforms can be effective in getting bills passed by the legislature. (See Colorado senator’s guide to effective HOA legislation.)

Success in HOA reform bills requires an understanding that the process is a social and political movement and not just a social media talk group.

Understanding constitutionality challenges

This post contains a lot of info about challenging HOA constitutionality, from the very broad — the HOA legal scheme is ab initio unconstitutional and invalid –to specific CC&Rs covenants violations.

Read my reply to “Can homeowners get rid of unreasonable, unconstitutional HOA rules?“ by Deborah Goonan on FB:

“I would add to Deborah’s list the following: Foreclosure as an 8th Amendment violation against cruel and unusual punishment (https://pvtgov.info/…/hoa-common-sense-no-8-draconian…/), and fines/hearings as a violation of the 14th Amendment due process violation (https://pvtgov.info/…/hoa-common-sense-no-6-fair-and…/), both under the broader prohibition of special laws for special organizations. I will comment on constitutional law on my HOA Constitutional Government site to help understand what the law is all about.”

Also on FB, Emily Bloom raised the following question, and my reply follows.:

Emily Bloom. “What kind of HOA legal case(s) do you need in the courts to get these issues pushed through the supreme court for some sort of resolution? Do people just need funds and energy to be able to fight it that far?”

I replied:

“Winnable! State and US supreme court only hear 10% of the cases submitted for review. Appellate courts must hear an appeal. You can sue against state constitutions to be heard by the state supreme court as Rutgers Law Clinic did in the NJ Twin rivers 2006 lawsuit. It requires both parties to have $$$ if pursued to supreme courts, and if CAI you know they have $$$$. Of course, like I was lucky to have a non-profit constitutional law firm take on my case because it was winnable. Otherwise, insurance companies will only DFFEFEND if HOA is sued but not if HOA sues. Beyond this simplistic response, a complicated explanation requires a degree of understanding how the courts work and some constitutional law. It starts with a party raising a lawsuit on a specific charge that can lead to introducing constitutional challenges by either party. Search my website for CAO and Brendt for examples of how constitutional challenges are presented.”

On my HOA Constitutional Government website I explained judicial review for the court to determine the justification that a law is constitutional, that, as far as I know, has not been satisfactorily presented by the government.

“I have yet to see any valid government justification in support of the HOA legal scheme that deprives citizens of their constitutional and fundamental rights. . . . However, the HOA scheme must be reviewed under strict scrutiny since it damages the members’ rights and freedoms.”

See Judicial Scrutiny standards judge claims of constitutionality.