We'd like to know if any of the following are substantial public policies:
"The ideal was that of self-governing local communities living the fantasy of the New England town meeting. The reality, too often, was an undemocratic oligarchy in which an apathetic body of residents was governed by a few dedicated or overly zealous neighbors who were for the most part told what to do by property managers and lawyers." -- Evan McKenzie, Privatopia, 121.
"The system of command in CIDs tends to be oligarchic, which is consistent with what is generally said about private governments. As noted by Berle and others, private governments—corporate and otherwise—seem to be temperamentally inclined toward oligarchy." -- Ibid., 135.
From Curtis Sproul's The Community Association Under California Law:
"Although the directors of nonprofit community associations are elected to office by the corporation's members, the structure of corporate governance fashioned by the California Corporations Code is essentially a 'top down,' oligarchic structure." [published in Common Interest Communities: Private Governments and the Public Interest, Stephen Barton & Carol Silverman, editors, 72]
Article IV, Section 4, of the US Constitution provides that "The United States shall guarantee to every State in this Union a Republican Form of Government."
Montesquieu wrote, in The Spirit of the Laws, "There is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."
James Madison was clearly influenced by Montesquieu. He wrote, in Federalist #47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."
According to Barton & Silverman, "Common interest homeowners' associations have rule enforcement powers that are commonly exercised in ways that are offensive to normal conceptions of due process of law and the separation of powers. The association board passes rules, prosecutes violators, and then judges the guilt or innocence of the people involved." [Barton & Silverman, Common Interest Communities: Private Governments and the Public Interest, 36]
According to Justice Arabian, "Enforcement procedures often fail to meet even a minimal level of due process. n128 The board of directors passes the rules, prosecutes the alleged violators, and adjudges 'guilt'."
"n128 See generally Barton & Silverman, supra note 112 (discussing common interest developments and its undemocratic structure)." -- Armand Arabian; Condos, Cats, and CC&Rs: Invasion of the Castle Common; Pepperdine Law Review; 1995; 23 Pepp. L. Rev. 1.
Judge Goff wrote, "Because HOAs are ruled by directors who make and enforce regulations and sit as judges in alleged cases of violations, deciding guilt or innocence and imposing any penalties without noticed hearing or unbiased judges, it cannot be argued that they provide procedural fairness."
"In CIDs, power is unitary. The board cites violators and holds the hearings that constitute the 'trial'." -- Evan McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government, 134.
"Charges of violation are made and heard by the board. There are no policies that separate the roles of accuser and trier of fact or that call for the empaneling of an independent, impartial jury." -- Ibid., 129.
Madison wrote, "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity," in Federalist No. 10.
"American CIDs are both like and unlike the garden city. The similarities include master planning of large-scale communities; isolation of the development from its surroundings and protection against change; capitalization on dislike of city life to attract residents; development of a government based on a corporate charter and attempts to replace politics with management; and creation of a government with greater powers than that of the city." -- Evan McKenzie, Privatopia, 18.
"Through private property relations, the board of directors does, indeed, have greater power over its residents than does a city." -- Ibid., 20.
"In addition, the association can impose certain standards of behavior on residents and anyone who visits the property. Taken as a whole, these powers permit the regulation of a wider range of behavior than any within the purview of a public local government." -- Ibid., 129.
"In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments." -- Evan McKenzie, Privatopia, 21.