AZ HB 2238 seeks clear enforcement of HOA decisions by ALJ

The strength in any law lies in its effective enforcement. The enforcement of OAH decisions by administrative law judges is set forth in the statutes as an appeal to superior court.  Somehow, CAI lawyers seem to have some difficulty in understanding the plain letter of the law.

The chain of authority in the statutes is quite clear.  With respect to ADRE, the agency responsible for dealing with HOA petitions to OAH, ARS 32-2199.02(B) States: “The order issued by the administrative law judge is enforceable through contempt of court proceedings and is subject to judicial review as prescribed by section 41-1092.08.”

With respect to Administrative Hearings statutes, the relevant part of ARS 41-1092.08(H) states: “A party may appeal a final administrative decision pursuant to title 12, chapter 7, article 6 . . ..”  This link takes us to ARS 12-910 as amended by HB 2238.

Currently, ARS 12-910 subsection E clearly states:

“After reviewing the administrative record and supplementing evidence presented at the evidentiary hearing, the court may affirm, reverse, modify or vacate and remand the agency action. The court shall affirm the agency action unless the court concludes that the agency’s action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion.”

I cannot see how the intent and explicit wording of these statutes would lead a judge to hold,

“Petitioner (homeowner) is seeking to enforce an administrative decision. Pursuant to Ariz. Rev. Stat. Sec. 32-2199.02 the proper venue for a contempt of court hearing (seeking to enforce the administrative decision) is the Administrative Courts, not the Superior Court.” (Whitmer v. Hilton Casitas HOA, CV2016-055080, Maricopa County Superior Court.) The decision by judge is a copy of CAI attorney, Augustus Shaw’s outlandish argument![1]

In short, the Superior Court rejected enforcement as specified in ARS 32-2199.02(B).  In my Advisory of Dec. 3th, Are ALJ orders in AZ enforceable against HOA?, I called for legislation to put an end to the unconscionable abuse of HOA attorneys to weaken homeowner justice in OAH dispute adjudication. Representative Eddie Farnsworth responded with HB 2238, amending ARS 12-910.

ARS 12-910, was amended by striking “contrary to law” above and adding the following to subsection E,

_{THE COURT SHALL REVERSE, MODIFY OR VACATE AND REMAND THE AGENCY ACTION IF THE COURT DETERMINES THE AGENCY’S ACTION WAS CONTRARY TO LAW.  IN A PROCEEDING TO REVIEW ANY FINAL ADMINISTRATIVE DECISION OF AN AGENCY BROUGHT BY THE REGULATED PARTY AGAINST WHOM THE ADMINISTRATIVE DECISION WAS ENTERED, THE COURT SHALL DECIDE ALL QUESTIONS OF LAW, INCLUDING THE INTERPRETATION OF A CONSTITUTIONAL OR STATUTORY PROVISION OR A RULE ADOPTED BY AN AGENCY, WITHOUT REGARD TO ANY PREVIOUS DETERMINATION THAT MAY HAVE BEEN MADE ON THE QUESTION IN AN ADMINISTRATIVE DECISION.} 

_{NOTWITHSTANDING ANY OTHER LAW, THIS SUBSECTION APPLIES IN ANY ACTION FOR JUDICIAL REVIEW OF ANY AGENCY ACTION THAT IS AUTHORIZED BY LAW.}

Concerned homeowners must not drop the ball!  This bill must be actively supported throughout the legislative process by emailing the sponsor, Rep. Farnsworth, the chairs of all committees hearing the bill, and to the legislators who will make the final decision on the bill.   Submitting “Request to Speak” comments (not necessary to appear) before any committee hearing is mandatory. Your voice must be heard loud and clear, because you know the Evil Empire and its followers are there in full force.

If you are seeking justice, you must fight for this bill!

References

[1] Augustus Shaw was found to be abusive by the Superior Court judge in North Canyon v. Mobbs, CV 2005-015360, Maricopa County Superior Court, 2006. See judge’s May 9, 2006 Minute Entry that includes: “The Court has also reviewed Mr. Shaw’s March 21, 2006 correspondence to Ms. Mobbs in this regard, and finds it to be abusive and inconsistent with the fundamental principles of professionalism sought to be advanced by the Supreme Court and the State Bar. . . Compounding the Court’s concern is Mr. Shaw’s filing of a plainly frivolous motion.”