Janice Rogers Brown
I have received a couple of forwarded posts about Janice Rogers Brown, the California Supreme Court Justice who has been nominated by President Bush to serve on the US Court of Appeals for the District of Columbia Circuit, but who has been filibustered by Senate Democrats. The Democrats, in support of their claim that she is "out of the mainstream" [I can't find that language in my copy of the Constitution for some reason], cite one decision. Here's some typical opposition language from the web site of People for the American Way. It is a quote from her dissent in the San Remo Hotel v. City and County of San Francisco case, followed by PFAW's characterization of the majority's ruling:
[P]rivate property, already an endangered species in California, is now entirely extinct in San Francisco…I would find the HCO [San Francisco Residential Hotel Unit Conversion and Demolition Ordinance] preempted by the Ellis Act and facially unconstitutional. …Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government. …The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion. [Dissenting opinion in San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87, 120, 128-9 (Cal. 2002)(upholding San Francisco ordinance calling on hotel owners seeking permission to eliminate residential units and convert to tourist hotels help replace lost rental units for low income, elderly, and disabled persons)][
The claim that she is an extremist seems to be based on her outspoken libertarian sentiments. Now, which way does that cut if you are an HOA unit owner? Does she come down for individuals to use their own property as they see fit, despite what their privatized local governments says, or (as I suspect) does she support the rights of the developer to create any rules he or she wants, and the rights of the purchasers to be forever bound by them if they make the "free" choice to buy an HOA unit? Libertarians seem to be coming down in favor of HOAs as private governments. At least, the ones I know do.
3 comments:
"The claim that she is an extremist seems to be based on her outspoken libertarian sentiments. Now, which way does that cut if you are an HOA unit owner? Does she come down for individuals to use their own property as they see fit, despite what their privatized local governments says, or (as I suspect) does she support the rights of the developer to create any rules he or she wants, and the rights of the purchasers to be forever bound by them if they make the "free" choice to buy an HOA unit?"
You are mixing two different and very important things here. Local government privatization today is no longer simply about the right of a developer to impose deed restrictions as in the early days of American common interest developments when they were used to keep out racial and ethic groups not wanted by the developer.
Rather than being driven by developers, local government privatization is now land use policy adopted by muncipalities and counties to effectively privatize their traditional governmental obligations. It has nothing to do with developers'rights.
I know the municipal mandate situation changes the dynamics here, but it doesn't seem to change the way libertarians view HOAs. My point is to consider what Justice Brown, as an obvious libertarian, might say about HOAs. Therefore I'm adopting for purposes of discussion the perspective they take on HOAs in general. Libertarians--at least nearly all the ones I know--defend HOA living as an example of contract-based service provision, and argue that it is better than the taxation-based service provision of municipalities. Why? Because (they say) HOAs are voluntary organizations. I know, I know...municipal mandates, lack of choice, lack of disclosure...but that's what they say. And the initial declaration of CC&Rs is universally viewed by courts as a contract. It is a contract that is made by one party (the developer), and accepted by another (the original purchaser," and it "runs with the land," meaning that all subsequent purchasers must accept the same contract. Libertarians believe in freedom to contract for whatever relationship you want, even if it is exploitative. They support legalized prostitution, drug use, gambling, and even contracts to pollute. So the issue remains: does Justice Brown think HOAs are voluntary organizations, whose contract-based relationships (structured by the developers and purchasers and based on their rights to freely contract) should not be tampered with by the courts?
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