Thinking about rights and liberties

The other day I ended up talking with a neighbor of mine. When I told him that I was about to start teaching a basic American Government course this summer, he launched into a political rant about constitutional rights, seen from what I would call a far-right perspective. I think, though, that even for someone with a different political orientation these observations might have some relevance. What struck me was the difference between the way he conceived of a constitutional right and the way I think about rights and liberties. As a non-lawyer, for him rights and liberties are absolute and the ones he doesn't like don't exist at all. So, for example, he think there is an absolute right to private property, but he thinks there is no right to privacy. He think "The Founding Fathers" intent binds us today, and that they (he believes) created an absolute right to private property, but that judges invented that whole right to privacy thing, so it doesn't exist at all. These liberties are like light switches--either on or off.

People with legal educations generally don't think about rights and liberties this way, because it doesn't work very well in practice. Rights and liberties frequently come into conflict with each other. If they are all absolute, there is no way to decide which one trumps the other. The Founders didn't give us a priority list to decide whether freedom of speech trumps private property. And using the Founders intent as a guide has been so thoroughly discredited as an impossible way to do things that nobody with any legal experience even tries. What did the founders intend about regulation of the internet, or genetic engineering, or nuclear energy? Nothing. That's why right wing judges like Scalia speak of original meaning, not original intent. They look at the text of the constitution and of legislation and try to figure out what they call the original meaning, not the intent, as expressed by the people who wrote it. There is too much compromise, logrolling, and ambiguity to ever discern a single "intent" among all the people who wrote something or voted for it. I don't find that particularly satisfactory either, in most cases, but it is a whole lot more sensible than the hopeless search for the unicorn of original intent.

But my main point is this: making decisions involving conflicting rights and liberties, and powers and duties, is hard and conflictual, and even the professionals disagree about how to do it. HOA and condo association governance puts individuals in charge of administering mini-governments where conflicts of rights and obligations occur all the time, often involving very complicated issues that implicate not only the association's governing documents, but state laws and even constitutional rights. Unfortunately, right now little attention is paid to educating people in how to make these decisions. To the extent that is done at all, it is usually done by lawyers and managers who are working for the BOD (or hoping to, using one of their "free educational seminars" that are actually fishing expeditions for clients). These folks tend to offer self-serving interpretations, such as the "obey the board" perspective. Why? Because they become the Board's lawyer or manager, and don't represent the individuals.

I hate to dump more responsibilities on governments, but who else will do it? In an article that I have coming out soon in Public Administration Review, I ask whether maybe public administration professionals and educators should be doing this. Maybe it's a pipe dream, but it is worth a thought.

Privatized mail delivery in the Netherlands

LRB · James Meek · In the Sorting Office
"Every week Dutch households and businesses are visited by postmen and postwomen from four different companies. There are the ‘orange’ postmen of the privatised Dutch mail company, trading as TNT Post but about to change their name to PostNL; the ‘blue’ postmen of Sandd, a private Dutch firm; the ‘yellow’ postmen of Selekt, owned by Deutsche Post/DHL; and the ‘half-orange’ postmen of Netwerk VSP, set up by TNT to compete cannibalistically against itself by using casual labour that is cheaper than its own (unionised) workforce. TNT delivers six days a week, Sandd and Selekt two, and VSP one. From the point of view of an ardent free-marketeer, this sounds like healthy competition. Curiously, however, none of the competitors is prospering."
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Privatized postal delivery in the Netherlands, with the competition the libertarians and other free-marketers extol, and yet it isn't all the theory promises.

Texas Legislature Online - 82(R) History for SB 142

Texas Legislature Online - 82(R) History for SB 142
Here is a request to get the word out that this bill is out of committee and headed for floor vote in the Texas House of Reps:

Please support SB142

Senate Bill 142 will be heard on the House floor on Thursday. Rep. Solomons has amended this bill, those amendments will help homeowners tremendously. The Industry is in a panic, if 142 passes, they will have to start playing NICER and attorneys that represent homeowners will have an equal opportunity to receive their fees. We need to protect the good things in this bill, priority of payments, payment plan, equal OPPORTUNITY TO RECEIVE ATTORNEY FEES, restrictions on resale certificates (no more surprises at closing), and the right to have solar power. Yes, there are still some problems, but this is the first bill in ten years that would give much needed help to homeowners and the attorneys that represent them. We must protect the integrity of this legislation!! This Industry consists of developers, builders, HOA attorneys and management companies...they will fight to kill this bill and keep their lucrative cash flow. We need your voice more than ever before.

HOA Reform can charter a bus for 40-50 people, or we will help set up carpools ...please let me know. For those that won't be able to attend, we will be sending form letters with phone numbers and e-mail addresses, for you to send, and your voice will be heard.
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I am not sure which Texas HOA reform group sent me this message, so here are links to both:

Texas Homeowners for HOA Reform

HOA Reform Coalition


There were a bunch of HOA/condo bills in the TX leg this session. In addition to SB 142, they include: HB 1639, 2761, 2779, 2869, 3347, 3348, and SB 472.
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Update 5/15/11: I received this info:
A message from Janet Ahmad:

Important Bill To Be Heard – Your Help Is Needed At The Texas Capitol
The Texas Legislative session is quickly coming to an end. The Committee hearings agendas have been filled with over 60 HOA Reform proposed legislative bills. Many of us have attended and testified in Business and Industry every Monday and Intergovernmental Relation (IGR) every Wednesday.

This week a very special bill will be considered on the House floor and we need your help. We need your help to personally pass out important information to both Senators and Representative asking them to vote for CSSB 142, a substitute HOA Reform bill sponsored by House Representative Burt Solomons.

We realize some of you can not make it to the Capitol so we are asking for you to join by sending e-mails to lawmaker and making phone calls to their offices. Your help is so important. Go to http://hoareformcoalition.org/ to learn more about CSSB 142 and other bills.

Our civil and constitutional rights are being eroded by an industry that for too long has blocked consumer’s access to the courts for any and all responsibility; foreclosed on homesteads from families non-judicially, despite our constitutional protections of homesteads. For the past decade homebuilders and developers have crafted self-serving Covenants, Conditions and Restrictions (CC&Rs) and its business of lucrative HOA management with the intent to impose astonishing controls, fees and divisive methods to prohibit residents from electing their own board members, airing legitimate concerns about defective drainage and shoddy home construction practices within communities. In collaboration with their management companies and their affiliate attorneys, builders are empowered in ways unimagined, such as implementing NON-Judicial foreclosures in as little as 28 day, without any formal notice to the homeowner. It’s frightening how the powers of HOAs have grown out of control.

In as week and a half the 2011 Legislative Session will end, so please join us this Wednesday, May 18, 2011 at the Capitol to make history.

IT'S TIME FOR CHANGE! Join the Coalition on the steps of the Capitol in Austin. Please try to arrive at 10:00 AM so that we may gather for instructions and materials. Handouts will be available for homeowners to take to their legislators listing legislative changes needed. Please respond as soon as possible. Let us know that we can count on you.

For those of you who can not attend please pledge to make calls and send e-mail messages. More instructions and Senator and Representative contact information to follow soon.
In the meantime find your legislators at "Who Represents Me?" on: http://www.legis.state.tx.us/ and contact them asking them to Support CSSB 142.

Tens of thousands of homeowners have suffered non-judicial and judicial foreclosure filings, exorbitant fines, fees and other harassments for frivolous and capricious citations. We need you help.
Be sure and read the latest news updates:
Help us to help you by keeping in touch. Tell your story through HOBB, and to your elected officials. Please post your comments on the many news reports below.
Thank you,
Janet Ahmad, President
Home Owners for Better Building
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Court: No right to resist illegal cop entry into home

Court: No right to resist illegal cop entry into home"INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry."
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Wow. So much for your home being your castle. Thanks to Jeff Hammond for the link.

Want More “Neighborly Love”? In An HOA?

Is “neighborly love” a “possible dream” within homeowner associations?

Are those members on the David Berman Blog who play “whack a mole” against so-called “malcontent” members believing they are ADDING to the chances of harmony in Sun City Anthem? Why would an “adult” homeowner posting on that site believe that hateful attacks and ordering fellow homeowners to “shut up or move” could produce any positive effects?

Unfortunately, “neighborly love” is rapidly being lost in Sun City Anthem due to increasingly dictatorial board behavior and mismanagement. The trend shows the problem is getting worse and the “malcontent” members are striking back through public media channels because SCA boards are doing nothing to resolve disputes.
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The commandment to love thy neighbor as oneself is being sacrificed on the altar of the golden calf of Privatopia.

Last year's bottom of housing market "just branches on the way down."

Zillow, which operates a popular real estate market website, now predicts that home prices nationally won't hit bottom until 2012 at the earliest.
Locally, the Sacramento Association of Realtors this week released April home sales figures for Sacramento County and West Sacramento.

The area saw the median resale price for a single-family home drop to $169,900 in April – down 8.2 percent from April 2010. It was the ninth straight month without a year-over-year increase.

The April median was slightly higher than the March figure of $166,000 – the lowest monthly median sale price since March 2001.
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Residential real estate deflation continues as the air keeps escaping the Big Bubble of the 2000s.

The Chicago Reporter Despair over disrepair

The Chicago Reporter Despair over disrepair
"In 2008, the city devised a way to keep neighborhoods from turning into junkyards as the nation’s foreclosure crisis roared on. The city passed an ordinance forcing owners of vacant properties—mostly financial institutions—to register them with the city. That way, the city could inspect the properties to make sure they weren’t falling into disrepair.

But an analysis by The Chicago Reporter found that many financial institutions aren’t registering the properties."
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Is anybody surprised? The banksters engaged in utterly irresponsible lending practices that encouraged millions of Americans to take insane risks that led to foreclosure and bankruptcy, then they created bizarre and horribly risky derivative investments that amounted to institutional suicide. When the industry went under in 2008, we, the taxpayers, bailed them out with our money. Now they have all this money and refuse to lend it to people. They are creating slums by letting their foreclosed properties deteriorate, refusing to pay HOA and condo assessments and property taxes, and generally behaving like corporate sociopaths.

And where is Congress in all this?

How Lightning fan outwitted petty HOA over playoff sign - Puck Daddy - NHL Blog - Yahoo! Sports

How Lightning fan outwitted petty HOA over playoff sign - Puck Daddy - NHL Blog - Yahoo! Sports
This is creative and funny. Thanks to Jason Zubia for the link.

On the Commons with yours truly

Here is the link to Shu Bartholomew's site where you can listen to Shu and me talking about my new book and other things.

Can’t We Dump Some of Our 3300 Special Districts? | California Progress Report

Can’t We Dump Some of Our 3300 Special Districts? | California Progress Report
"Even if Gov. Jerry Brown doesn’t succeed in shutting down California’s redevelopment agencies, hardly a sure thing, he might usefully turn his attention to the state’s costly tangle of special districts.

There are some 3300 of them, depending on who’s counting -- fire districts, park districts, community services districts, mosquito abatement districts, water districts, transit districts, sanitation districts, cemetery districts, etc. Don’t tell me we really need them all.

Despite the huge sums they spend, the essential services many provide, and the big piles of cash they sit on, most of them are nearly invisible to the media and the voters, except in cases of scandal."
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Thanks to Fred Pilot for this link to a commentary piece on the proliferation of special districts. We have decentralized the taxing power to the point where we are getting nibbled to death by ducks.

News from The Associated Press

News from The Associated Press"WASHINGTON (AP) -- Fannie Mae asked the government Friday for an additional $8.5 billion in aid after declining home prices caused more defaults on loans guaranteed by the mortgage giant.

The company said it lost $8.7 billion in the first three months of the year. Those losses led Fannie to request more than three times the federal aid it sought in the previous quarter. The total cost of rescuing the government-controlled mortgage buyer is nearing $100 billion - the most expensive bailout of a single company."
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These continued losses are driving the plan to privatize Fannie and Freddie. What will happen to the mortgage market if Congress follows through with that plan? I think home ownership rates will go down, never to go back up again.

Proposed HOA foreclosure reforms stall in North Carolina

Foreclosures and other practices have drawn the scrutiny of state lawmakers, but legislation proposing changes so far is languishing in committee this session as state budget negotiations have taken priority.

Rep. Susi Hamilton, D-New Hanover, signed on as a primary sponsor to a bill that would limit the foreclosure power of associations. It would alter the law so that an association couldn't foreclose on a lien made up of unpaid dues or costs associated with unpaid dues, such as late fees and interest. The bill has not yet been heard in subcommittee, Hamilton said in an email.

Half dozen Arizona bills limiting HOA powers become law

Arizona homeowners associations are losing a few more of their powers.
They can no longer ban political and real-estate signs, flagpoles or parking on public streets, according to six bills signed into law by Gov. Jan Brewer. And association boards can't restrict political activity in public areas, force residents to buy "approved" signs, ban the "tea party's" Gadsden flags or charge more than $400 in HOA "transfer" fees on a home sale.

Real estate downturn produces rental income for HOAs

When a homeowner association forecloses and takes title to a home, the idea is the board will be able to rent it out until the bank forecloses as the primary lien holder. With banks taking years to foreclose on some properties, the board can potentially collect thousands of dollars
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Apparently there's a silver lining in the real estate crash for HOAs. While they hold junior title under mortgagees, in the meantime HOAs can milk properties they seize in foreclosure for rental income until the mortgage lender takes back the property.