California's Davis-Stirling Act creates CIDs as state actors

Dear California Legislators,

While civ: 1352 of the Davis-Stirling Act (please note that this Act has been placed under the Civil Code and not the Business and Profession Code) declares how a CID is created, "This title applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association ....", 1363(a) mandates a homeowners association, to be known as a community association and not a CID association, "A common interest development shall be managed by an association that may be incorporated or unincorporated. The association may be referred to as a community association." Yet this imposition of a private government lacks any homeowner protection as with a Homeowner Bill of Rights, nor does this provision require approval by a state agency or legislature, as would be required if the CID were attempting to form an incorporated community within the state structure.

The operative word is "shall" and constitutes a delegation of legislative powers to the community association. Under common interpretations of the US Constitution, this makes the association a state actor and subject to the 14th Amendment prohibitions as any other government body.(1) This state of affairs subjects these CIDs to meeting the recognized standards of proper due process equal application of the laws protections under the 14th Amendment.

While paragraph 1363(g) seems to provide proper notification of "crimes against the CID" by requiring that a schedule of violations be adopted and provided to each homeowner, much like in the public sector where criminal law requires that a crime must be contained in some statute, "[T]he board of directors shall adopt and distribute to each member, by personal delivery or first-class mail, a schedule of the monetary penalties that may be assessed for those violations . . . ."

However, paragraph 1363(h) only requires,

When the board of directors is to meet to consider or impose discipline upon a member, the board shall notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting. The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined, and a statement that the member has a right to attend and may address the board at the meeting.

This provision does not meet the accepted standards of due process that demands an impartial hearing where the accused may confront the accusers and present and examine witnesses. The homeowners are being short changed.

Under Article 4 of SB551 we have a very good move toward providing for this independent tribunal as a very good attempt to meet established requirements for due process. It's unfortunate that the bill does not provide a mechanism to insure that the proposed bureau will indeed be there to serve justice for all. A "a pay as you go" procedure, as adopted in Arizona and as we have in the public sector, is a more appropriate approach to attaining this justice.



Notes:
1. See generally, Brentwood Academy v. Tennessee Athletic School ,531 US 288 (2001) (tests for state action); Steven Siegel, The Constitution & Private Govt, W & M Bill Rts J 461 (Summer 1998).