HOA By-Laws: Conflict between amending process and an amendment&#39;s change process? My question is: if the original by-law amendment process (Article XIII as a point of reference) states that a simple majority of ALL members is required for changes, and that provision has not been amended, then is it legitimate for an amendment (amended Article VII) to prescribe a less-restrictive change process if the change is isolated to the specifics of the amendment itself? To give a little context: my HOA recently voted on highly-contested proposal for a dues increase (~60% increase). The proposal was recently announced as having passed with majority: 65 votes of 129 "homeowners in good standing" The by-laws of our association mention the amendment process (Article XIII) with the following wording: "These By-laws may be amended, at a regular or special meeting of the members, by a vote of a majority of the members. Such votes of the members of the Association shall require the designated affirmative vote of all the members, not just the designated affirmative of a quorum of the membership" Originally, from what I can tell, the By-laws did not include explicit dues rates, so amendments were passed in 1985, 1988, 1991, and 1997 to update that. In 1985, the first dues introduced (added to Article VII) with a provision that "Any increase in this amount must be approved by a majority vote of the Members of the Association." In 1988, however, that provision was changed to include the following wording(emphasis mine): "Any increase in this amount must be approved by a majority vote of the members in good standing of the Association." The amendment in 1991 removed the "in good standing" requirement, but then the amendment in 1997 added it back in. (Our HOA is nothing if not inconsistent) In this specific case, having at least one member who's not in good standing reverses the outcome of the vote (65 affirmative votes is majority of 129 members in good standing; but it's not the majority of 130+ total members).
Since you did not provide the full text of your bylaws I will proceed by how I would imagine the language was written. I will give an alternative at the end of the answer. Your organization (HOA) created a set of bylaws. The bylaws indicated the method by which they can be amended. Later on the HOA added an amendment to these bylaws authorizing dues and instituting a specific procedure by which the dues could be increased. Now assuming this amendment was properly adopted (i.e. the original requirement was followed to amend the bylaws) it is now on equal footing to any other part of the bylaws. What this means is you now there is a process which can voluntarily be followed for increasing dues. You can either continue using the old process to amend bylaws and increase the dues that way or you can use this new process to increase dues through a majority vote of the members in good standing. Either way is valid to increase the dues. Thus the procedure as you described is a valid way to increase dues. However, if the language in your bylaws was poorly worded I might come to the opposite conclusion, which is possible. Suppose the amendment to the bylaws, which originally created dues, specified the dues as part of the bylaws (like exact dollar amount). Suppose that the language about increasing dues was poorly written and said exactly what you quoted: “Any increase in this amount must be approved by a majority vote of the Members in good standing of the Association”. Then there really needs to be an analysis of what procedure was indeed meant by the original adopters of the language or relevant case law in your state. It is unlikely, but possible, that this language could be interpreted to put another, separate, requirement on amendments to the bylaws that specifically increase the dues. I.e. dues increasing amendments must be both approved by the majority of the members and majority of the members in good standing. However, if at all competently written the bylaws should not require this method of approval unless it was intended to require this method.
In my experience, varying jurisdictions can and do differ as to the myriad ways these disputes are resolved. Contract law is one area where the judge has a lot of discretion. This is definitely true in state courts, even from judge to judge, and can even be true in the federal level-The 9th Circuit has some wildly different appellate decisions when compared to the 1st Circuit, and so on. I say this not to be argumentative, but to highlight the importance of careful and concise drafting that fully explicates the bargained for exchange, as there can be a vast amount of judicial subjectivity that goes into determining which rules pertain to certain situations. "Conflicting or competing clause" cases are now some of the most commonly litigated contract disputes. This is largely because the last 20 years has seen a huge influx of people "drafting" (more like piecing together) contracts without benefit of qualified counsel. This is particularly true because lay people do not generally create a specific insturment like an attorney would - from scratch, with definitions and terms specific to the transaction. Rather, they go online and find "form" or model contracts that they feel are close enough (which are almost always missing key components), and then they type in their own terms, or even write them in. Because this is so common, most jurisdictions follow the rule that hand written terms supersede pre-printed terms; likewise, type written terms will take precedence over pre-printed terms. Specific terms also carry more weight than general terms. Specific terms will usually be given precedence over general terms, as these are seen as creating a specific exception to the general terms. For example, if Clause A in your scenario said: Written notice must be provided at least five days in advance of (any) change... (leaving out "to price"), then clause B would prevail because it would be more specific than the more general term (A), which in my scene would pertain to any change whatsoever (this is assuming the whole of the agreement did not shed light on the issues more fully). In your hypothetical, these are both specific terms. In that case, the court would first examine the entire contract and all addendum, specs, plans, etc. when interpreting competing or conflicting clauses applying the fundamental principal that a contract should always be interpreted as a whole - not clause-by-clause - and not section-by-section. Contracts will often have numerous parts with portions incorporated specifically by reference, or numerous documents that may be integral to the transaction, If the parties agree to what constitutes the various parts of the contract (even if not incorporated) the entirety of the transactional documents may be considered by the trier of fact (and law). Once examined, if a proposed interpretation makes other portions of the global agreement meaningless, illogical or unenforceable, and another party's interpretation is in keeping with the document as a whole, that is the interpretation that will typically be adopted. Assuming this analysis doesn't work to resolve the issue, then the court would look to see if there is an order-of-precedence clause, which is a clause that lays out what parts of the contract / types of clauses take precedence over others (ex. written requirements take precendee over performance requirements, addendum hold less import than the signed agreement, schematics hold less import than addendum, and so on). Assuming this there is no order of precedence, the court will look first to see if the contract was negotiated back and forth, with terms being modified with each draft. If Yes, then the court will except extrinsic evidence (parole evidence) that goes to the intent of the parties bargained for exchange. If not, the contract term(s) will be construed against the drafter and in favor of the one who signed the others' instrument. So, as you can see, there is no clear answer to what seems to be a simple issue. This just goes to show: Lawyers seem expensive when you decide to hire them - Lawyers are expensive when you have to hire them, because you decided not to in the first place!
Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure.
The Seventh Amendment's jury trial provision does not apply to the states. The Bill of Rights does not inherently restrain the states at all, merely the federal government. The Fourteenth Amendment does restrain the states; notably, it forbids a state from depriving any person of life, liberty, or property without due process of law. Courts have read into "of law" the added requirement that the law be compatible with the fundamental rights that are implicit in the concept of ordered liberty; this means that most stuff that would violate the Bill of Rights if done by the feds violates due process if done by the states. However, not all provisions of the Bill of Rights have been incorporated (i.e. applied to the states); the requirement for a jury in a civil trial is one of the few that hasn't been incorporated, because courts do not consider it a fundamental right (merely one protected in the federal courts). Now, many traffic tickets are actually misdemeanor offenses, and a jury-trial requirement for crimes is incorporated. However, even for federal offenses, the courts have generally found that the Constitution doesn't require jury trial for petty crimes (those with a maximum sentence under 6 months).
No. It is an often repeated misconception that "Freedom of Speech" means that no one can restrict speech ever. This is not the case. Let us look at the US Consitution's First Admendment, which contains the "Freedom of Speech" clause: Congress shall make no law ... abridging the freedom of speech, or of the press... (Emphasis mine) As one can see, the First Amendment only restricts government actions. (It also stops other branches of government from restricting speech, because those branches are innately weak with very few powers granted to them by the constitution; the majority of executive or judicial branches powers are granted to them by a law passed by Congress, and Congress cannot give a power to another party that they do not possess). A Home Owner Association (HOA) is not a government or government agency; it is a private organization (and it is not the same as the "private management company" that manages the condominium, which is probably in the employ of the HOA; which also means that emailing the manager is not emailing the HOA board). Their power stems from a contract, one that your friend signed when they bought the property (one of the conditions agreed to is that a member who sells or gifts their HOA-member property can only do so to someone who also agrees to the contract). That said, HOAs can be horribly abusive and many states have laws that restrict what kinds of rules and penalties can be applied by an HOA. But that is not a constitutional matter (at either the Federal or State level), nor a question of "Freedom of Speech", but rather a limitation on the kinds of behaviors that can be enforced by contract.
Are there any underlying reasons behind the nonsensical structure of U.S.C. titles? Is it simply a case of "This is how it's been for awhile, don't fix what isn't broken." or is there more to it than that? First of all, the United States Code is generally not designed to be used by non-lawyers. Second, one of the main ways to research case law interpreting a statute is by doing a boolean search on the code section of that statute. Every time you change a title or section number, you impair the ability of people doing legal research (both judges and lawyers) to find previous case law interpreting the meaning of the statute. Third, you make it much harder to determine when the substance of the provision was originally enacted (e.g. if you want legislative history or to determine which of two conflicting statutory provisions was enacted first) since an annotated statute will often show when the current section was enacted but will not explain what it was derived from. Fourth, the location of a statute within the context of other statutory sections often informs its meaning. Machine gun may have one definition in two or three laws, and a different one in two or three other laws, and there may be yet other laws where machine gun is an undefined term. Moving a statutory section from one part of the code to another could influence the default definition that one uses for an undefined term changing substantive law. Fifth, usually a new codification will also involve some drafting standards, for example, to add gender neutrality or to avoid notoriously ambiguous constructions (like 250 word sentences). But, it isn't at all uncommon for very slight changes like the position of a comma or the formatting of a section with multiple indents, to result in a change of the likely meaning of a somewhat ambiguous statute and it is pretty much impossible to know a priori when a statutory section is ambiguous until you are confronted with a fact pattern that makes the ambiguity in that context clear. This isn't confined to obscure laws of little importance. For example, the question of whether Obamacare applied in states that hadn't set up their own exchanges hinged on these kinds of issues. None of this is to say that you should never recodify the statutes. But, a basically aesthetic motivation that mostly matters to people who make up a tiny portion of the main users of the product (non-lawyers) that poses multiple threats to how statutes will be located using legal research tools, and how it will be interpreted once located, means that reorganizing statutes is not something to be done lightly. In short, there are a lot of serious, substantive costs that can accompany a recodification of a law. As a result, re-codification is most often done only as part of an overall omnibus reform of an area of law on the merits where the interest in being able to track prior interpretive caselaw and determine the original meaning of a statute enacted long ago is at its lowest. Barring the even more ridiculous case of Congress repealing everything and passing the exact same laws again, just under different Titles/Chapters/etc, This is not so ridiculous. Most states have done exactly that one or two times in their history (sometimes more for older states). Also, many newly admitted to the union states also do something similar. For example, the basic template for the statutes in Colorado was the statutes of the state of Illinois. Basically, the first time around, somebody started with an Illinois statute book, eliminated Illinois specific laws and laws that they didn't like, rearranged them and adopted them as the original statutes of the State of Colorado (it may have actually been version 2.0 after a stopgap set of statutes, I don't recall which). Also, most states completely repeal and readopt all of their statutes in codified form on the recommendation of the codifier to a legislative committee, to reflect the acts passed in the previous session, every year. This doesn't involve overhauls really, but in principle is a complete repeal and reenactment. While the federal government has never overhauled the entire U.S. Code in this manner, it has been done at the level of individual titles of the U.S. Code. For example, the most recent major reorganization and overhaul of the structure of the Internal Revenue Code (Title 26) was in 1986. The copyright laws were overhauled in the late 1970s. Both of those accompanied major substantive changes in those areas of law. Another major recodification of many parts of the U.S. Code took place following 9-11 in connection with the creation of the Department of Homeland Security, which reorganized both the bureaucracy and the associated U.S. Code language associated with dozens of federal agencies. would it be possible for Congress to arbitrarily merge, combine, and delete Titles, and to rearrange the location of laws, definitions, etc? Are there laws/regulations governing this? Yes. Congress can do so any time it wants by passing a bill (it would be the longest bill ever - dozens of volumes long) doing so, and getting the President to sign it. The legislative process would be exactly the same as any other bill.
One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment.
It is true that a shareholder who controls a majority of the votes can be quite powerful indeed. This is a somewhat murky area of the law, but in many cases, a majority shareholder has a fiduciary duty to do what is best for the corporation as a whole (not just the majority shareholder, but all shareholders), an obligation that logically parallels the obligation of the board of directors (which controls a corporation with much the same effect as a majority shareholder). In Delaware, where most large corporations are incorporated, a major shareholder or group of shareholders can have less than 50% of the vote can still be considered de facto majority shareholder if they have influence over the rest of the shareholders. Majority shareholders, either de jure or de facto, are required to act only with "entire fairness" to all the shareholders, and courts may invalidate or otherwise grant relief on transactions made by majority shareholders that are not fair to all shareholders. If a majority shareholder takes actions directly, it has the burden of proof in court to show that any actions taken accord with the "entire fairness" standard. A more in-depth discussion of these issues can be found in this article out of the Harvard Law School Forum on Corporate Governance and Financial Regulation.