ACSBlog: The Blog of the American Constitution Society: Guest Blogger: Nominee Brown's Views Rejected by Justices Scalia and Thomas
The other day I mentioned some of the objections to Janice Rogers Brown based on her libertarian views. I was speculating that she might be a pro-HOA justice because, like most libertarians, she would object to government interference with the terms of CC&Rs, which are contracts that structure private property rights. Here is a link to a post on ACSBlog by Lauren Sanders, an attorney at the National Senior Citizens Law Center. This post explains why her dissent in San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal. 4th 643 (2002), is considered so radical. She said (the poster argues) that government infringements on property rights should be evaluated under the "strict scrutiny" standard, which is the highest level of scrutiny, rather than the "rational basis" test, which is the lowest. In other words, property rights should be treated like freedom of speech, press, association, and other "preferred position" liberties deemed essential to the functioning of a democracy. If her view became law, it would mean that a state infringement on private property rights would only be upheld by the courts if the government could show that the infringement was necessary to advance a compelling government interest. That's hard to do. Right now, under the rational basis test, all the government needs is a rational relationship to any legitimate government interest.

My guess is that if she does hold that view, she'd take a dim view of legislative action that tampered with the relationships set up in CC&Rs (such as the duty to pay assessments and obey rules and live under the discretionary governance of an HOA), and would hold property owners in HOAs and condo associations to the terms of their original deal. In other words, the recent wave of reform legislation in California, Nevada, Arizona, and Florida would probably be suspect under the standard that she believes in, if the post I linked to is correct about her views. She is on the California Supreme Court. She agreed with the court in Villa De Las Palmas Homeowners Assn. v. Terifaj, 33 Cal. 4th 73 (2004) where it was held:

We conclude that under the plain and unambiguous language of sections 1354, subdivision (a), and 1355, subdivision (b), use restrictions in amended declarations recorded subsequent to a challenging homeowner's purchase of a condominium unit are binding on that homeowner, are enforceable via injunctive relief under section 1354, subdivision (a), and are entitled to the same judicial deference given use restrictions recorded prior to the homeowner's purchase. We also conclude the trial court did not abuse its discretion in awarding attorney fees to the homeowners association as the prevailing party.

That case is a big time reaffirmation of Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal. 4th 361, by the way, which is one of most pro-HOA rulings from any state supreme court.