HOA reforms needed to guarantee U.S. Constitutional protections

Letter to the Arizona Capitol Times, Nov. 25, 2005

Replacing democratic local governments with authoritarian private governments: Is this good public policy?

With another Legislative session soon to start, homeowner rights advocates are again seeking the substantive reforms to correct long-term problems with planned community governance. At the heart of the matter is the continued replacement of democratic local government, governments subject to the U.S. Constitution and 14th Amendment prohibitions, with contractual, authoritarian private governments that are not subject to the prohibitions of the 14th Amendment.

The two broad prohibitions within this amendment are the equal application of the law and the due process clauses that are not applicable to private agreements. Or are they?

I ask the legislators, the public interest organizations and policy makers to consider the following questions:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the U.S. Constitution?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

George K. Staropoli