Tag: constitutional

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.

Judicial review of laws affecting your rights

In reply to an incident questioning the validity of a statute, the state’s AG responded with the usual, “determines that the enactment was reasonably necessary to further a legitimate public interest.”

This is open ended. However, very importantly, challenges to the constitutionality of the laws, and this is really the case here, fall under the doctrine of judicial review. There are 3 levels with “general interest” allowing the government to do almost anything. Strict review applies to violations of constitutional and fundamental rights and requires “a compelling reason and there is no other alternative available,” so it’s protected. Most violations of free speech and the unequal protection of the laws and due process, as we see in HOA violations, require a strict review.

Judicial review rarely occurs and not invoked when filing a relevant complaint.

Law review article talks HOA constitutionality

While the title of the Ken Stahl Pepperdine Law Review article addresses the “validity of private deed restrictions” (CC&Rs) and “an unconstitutional taking” (eminent domain) with respect to affordable housing, Stahl’s investigation covers many of the HOA constitutionality concerns that I’ve raised over the years. He warns about legislative “overrides” – statutes that impinge on CC&Rs – and the balance of governmental powers between the state/county and private, contractual governments.

View the full response at HOA Constitutional Government.

Research memorandum examples

I chose 2 document examples, a court analysis and an issue or legislative proposal memo. The case study dates back to 2006 and the AZ Office of Administrative Hearings (OAH) adjudication of HOA disputes. It strictly follows my suggestion on understanding a legal decision. View OAH.

The second document is a presentation of arguments regarding a proposed legislative reform bill, based on a recent court holding. I chose an important but complex Florida case (Woodside Village Condominium Assn v. Jahren, 754 So.2d 831, Fla. 2 Dist. App. 2000) to address ex post facto amendments and eminent domain takings by HOAs. It required a separate examination of 4 constitutional issues. I wrote: “This Florida Supreme Court case, supporting such amendments as valid, touches on important constitutional questions of due process and the equal protection of the laws.” View proposal arguments.

Please feel free to discuss with others and to ask questions for clarifications. A dialogue will go a long way.