From George Staropoli comes this response to the Pilot/Berding discussion:
Finally, a debate, a firm discussion of one of my favorite issues — the legitimacy of the HOA regime. As the unmentioned, chief protagonist asserting the illegitimacy of private local governments that are unaccountable under the Constitution, I offer my comments. Because of the length of my response, I’m forced to provide an excerpt here on The Privatopia Papers, and the full response can be found at Legitimate HOA Government.
Berding dismisses concerns over “the legal structure of community associations as if that were somehow a fundamental problem.” He maintains that “It isn’t, it’s largely academic, and in the big picture, it isn’t important.” You know, what I’ve been writing about as the defective HOA legal scheme founded upon the 1964 “bible” for HOAs, The Homes Association Handbook. Berding asks, in apparent astonishment, How one would respond to the statement that, “Homeowner associations are not legitimate forms of government?” He rejects the reading the Constitution as circular reasoning. But, there is more to constitutional doctrine than found in the Constitution, so please read on Mr. Berding.
McKenzie reaches the opinion:
I conclude that for the most part, despite having some reservations and misgivings about privatized local government, the overwhelming majority of Americans will continue to act as if they believe condo and HOA actions are legitimate contracts.
(But, surely, shouldn’t our policymakers and legislators care?)
And what is the fundamental criterion of legitimacy? Constitutional doctrine says that a legitimate government is based on fair and just laws. But this issue has not been discussed in this exchange of posts, or anywhere else!
With respect to HOAs as private organizations, I ask, Has the legislature delegated authority to these entities to act as an unregulated private government? And the answer is unquestionably, NO! (Recall that in Arizona, its appellate court found the question of improper delegation of regulatory authority to an agency, no less than to a private entity, was sufficient for statutes allowing ALJ adjudication to be declared unconstitutional.) Case law abounds with such statements as:
“We think such power to determine who shall have the right to engage in otherwise lawful enterprise may not be validly delegated to a private organization”; “the Legislature cannot constitutionally delegate to the private parties governmental power . . . contrary to the public interest”; “The Legislature may not surrender its authority to a body [to further] the interest of a group which may be antagonistic to the public interest”; and “legislative bodies may not abrogate their responsibility . . . by delegating this responsibility to private parties ‘uncontrolled by any standard or rule prescribed by legislative action.” (Administrative Law, Section 1.3.2, 2nd ed., Aman & Mayton, West Group 2001).
In my view, the primary reason for this state of affairs has been the avoidance and refusal of those who should know better to raise basic questions pertaining to our social contract under the Constitution.