Monday, January 18, 2010

Secession is not bad, according to CAI attorney: HB2153

By George K. Staropoli Author: Establishing the New HOA-land America

HOA attorney Scott Carpenter, a long-time CAI member, lobbyist and Chair of its Legislative Action Committee, states on his new blog that these are his personal views, yet the blog contains his firm's imprimatur, "Carpenter, Hazlewood, Delgado & Wood blog", and Carpenter still remains the CAI LAC chair. Can a public figure make such a declaration and in all honesty expect the people to believe it? That would be like a member of a campaign staff claiming to make personal comments, so the candidate can disclaim any responsibility as to shared beliefs. Must we now ask CHDW and CAI whether or not they agree? "Could you clarify any differences of view?"

Last year, Rep. Nancy Barto attempted to get her bill that public roads belong to the public, and are not under the control of a private HOA regime, into law. This session, she re-introduced this very important bill that has constitutional ramifications: can we allow secessionist private HOA governments, not subject to the 14th Amendment restrictions and protections of individual rights, to control public streets and set the equivalent of municipal ordinances?

Attorney Carpenter seems to thinks so. Not being able to find applicable justification under the law, he must find a reason under "an extension of law" to resort to philosophical beliefs, beliefs amounting to serious political and social changes, that a privatization of government functions, not services, is not bad. He writes in "Authority over the Roads", "There is no philosophical reason or justification for why the ability of a planned community to exert “authority” over an area “dedicated to a governmental entity” is bad after the developer is done but is acceptable before." Don't be confused by the concern for the developer's role. Carpenter is just mucking up the issue.

The answer to his concern about developer privileges is a resounding, Yes, it is an undemocratic grant of special privileges and immunities to the developer! But, that's not the real issue. The real issue is that there are fundamental philosophical reasons against this granting of governemnt powers, and Carpenter's implied "innocence" of constitutional law is disgraceful! (Attorneys are bound by the Supreme Court rules of conduct, and ethical rules 7.1 and 8.4, see below). He then makes a carefully crafted statement, posing it as a conditional statement, but in reality is a false statement of fact, "If a planned community has a contract with a governmental entity that provides for the planned community to maintain landscaping on government property, why should that agreement be voided? Why is that bad?" He well knows that the legislature has not delegated authority or has permitted the grant of a franchise to HOAs.

In his argument, he bypasses the issue of constitutionality of a statute that grants the delegation of legislative powers to a private entity. Article II,Declaration of Rights, Section 13, Equal Privileges and Immunities, of the Arizona Constitution is quite clear on the matter: "No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations. "

HB 2153 puts a small stop, but nevertheless an important stop, to the unconstitutional encroachment of the Arizona Constitution by these private governments, who, by the very nature of not being subject to the 14th Amendment, have seceded from the Union.

Ethical Rules:

ER 8.4. It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;

ER 7.1. A lawyer shall not make . . . a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. . . . A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.

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