Ted Simons: Good evening. I'm Ted Simons. Lawmakers in the last session approved changes to the way homeowners associations are run. But the changes were pushed on to an elections bill and critics say the resulting law violates the state constitution's single subject rule. Attorney Tim Hogan is with the center for law and the public interest. They have filed suit. We're talking about election bill law and HOA changes at the last minute?
Tim Hogan: At the last second on the last night of what had been a really long legislate of session this HOA bill that covered a multitude of subjects related to HOAs from who you can rent property to the size of signs you can put in your yard and things like that, was added on to this elections bill at the last minute on the last night of the legislative session. What is interesting is this HOA bill had previously died in the session. It had been a separate bill earlier in the session. It passed the house but it didn't go anywhere in the Senate and it died, so here in fact the same bill had been vetoed by the governor the previous year. So fortunately the constitution prohibits this kind of stuff.
Ted Simons: Let's talk about this. Why did you file suit and why do you think it violates the constitution?
Tim Hogan: The constitution prohibits the legislature from combining more than one subject into a bill. It's called the single subject rule. And the same provision of the constitution requires that every bill have a title and that the title describe the contents of the bill. So in this case we have a bill that ended up with a title called elections. Even though more than 50% of this bill has to do with homeowners associations. But the purpose behind a single subject rule is to prevent what's called log rolling where you can have two separate bills with minorities supporting those bills, they can combine into a majority even though they are on vastly different subjects and get it passed.
Ted Simons: And that is a violation of the constitution.
Tim Hogan: Absolutely.
Ted Simons: Okay. Behind the HOA laws, found life at the last second. She is quoted in the republic or capitol times I can't remember which the rules committee staff found that the HOA reforms were germane to the elections bill. How do you respond?
Tim Hogan: Well, that's just silly. I mean, the HOA provisions are totally unrelated to the elections bill. Despite the fact that there's one sentence in the HOA bill having to do with being able to vote electronically.
Ted Simons: I think there's something about political sign usage as well. For elections.
Tim Hogan: There are. But that's not about government elections, which is the subject of the reform bill. That started out addressing principally in-kind contributions for candidates.
Ted Simons: The HOA mention apparently in the title because again I guess the Senator thought it was germane, the title didn't need to be changed because they all fit together.
Tim Hogan: I'll tell you the real life story of this. Our client in the lawsuit is HOA activist who follows all the HOA bills. He will been dogging the bill earlier in the session. So he's been around long enough he knows just because it died in the Senate didn't mean it wouldn't come up later but because the title only fit elections and was done on the last night he had no notice whatsoever they were making this massive change and resurrecting this bill and layering it on top of an elections bill.
Ted Simons: Is that part of your suit, that you claim it's somewhat misleading if you don't know X is being debated because X is being swallowed up by Y?
Tim Hogan: We have set that out in the complaint, sure. If he had had notice he might have been able to do what he had done previously, to contact legislators, state his objections to the bill, why it should be held, and it was held previously.
Ted Simons: I think was it two HOA activists, folks involved with HOAs, you filed on behalf of them?
Tim Hogan: Correct.
Ted Simons: Is it the whole nine yards or just the title?
Tim Hogan: The whole nine yards. There's a particular provision we haven't talked about that allows HOA management companies to have one of their employees represent the HOA in small claims court. You know in small claims court you can't have a lawyer, so the homeowner goes into small claims court by himself with no lawyer, but now the HOA's management company can have one of their executives or officials come into court and represent the HOA, and he was particularly upset about that provision being included in the bill.
Ted Simons: Okay, if the court agrees on the single subject violation does that mean the entire law is struck down or just half of this?
Tim Hogan: If the court agrees that it violates the single subject rule, that you have two different subjects and we clearly do here, the entire bill is voided. If, on the other hand, alternatively the court says, well, not going to reach that issue, the title covers only elections and so therefore the elections components will survive, that means all of this HOA stuff would go away.
Ted Simons: So there are two possible out that I guess people you're working with would be looking forward to.
Tim Hogan: Correct, but I also represent clients who have interest in the election reforms who wouldn't mind that bill going away as well.
Ted Simons: Alright, so again, we're looking at single subject rule here and the idea that I guess what you're saying is if you want two separate things, go ahead and put them in two separate bills, address the separate bills, don't put them together because you're not supposed to do that.
Tim Hogan: That's the way this started out until they decided to violate that provision on the last night of the session.
Ted Simons: Alright, good to see you again. Thanks for joining us.
Tim Hogan: You bet.