In this holiday time, a repost of my 2006 poem seems to be appropriate.

Happy Holidays!!

 

And the Land Shall Be Made Good Again

George K. Staropoli, Copyright © 2006- 2017 George K. Staropoli

In the beginning

There was the land,

And the land was good

And the people were happy.

 

Soon upon the land

Came the moneychangers

In the guise of builders

Of the community.

 

And the moneychangers said

Behold, the covenants, conditions and restrictions

Were sacred and holy works,

And the people shall flourish and prosper.

 

And the legislature looked upon these CC&Rs

And said they were sacred and holy,

And that land values shall multiply ten-fold,

And the people shall flourish and prosper.

 

But the moneychangers were not content,

Seeking laws that forced the people

Against their judgment and wishes

Into mandated planned communities.

 

Soon, the multitude became angry at their plight,

Yet the moneychangers and legislature

Cast the people into involuntary servitudes

With continued tithes while disputes went unresolved.

 

The child-like people, seeking paradise

On earth and the gates of heaven,

Were not permitted audiences

With the magistrates.

 

And so the multitude suffered

A long and terrible time,

Praying for a savior one day

To deliver them from their existence.

 

One sect sought the accommodation

With the ruling powers and moneychangers.

Another sought a cleansing

Of an unworkable oppression upon the people.

 

Those seeking accommodation held fast to their desires

To see their fortunes on earth multiply ten-fold,

And that all such plans were good and just,

For the land values increased for all the community.

 

But many saw the desecration of the beliefs, values and ideals

Of the founders of the Great Nation that covered the land,

Saying behold the society that thou hast created,

Where Me First has replaced Love Thy Neighbor.

 

A babble of communities arose

By the followers of the moneychangers,

With beliefs, values and ideals of the Old Ways,

Once rejected by the Founders of the Great Nation.

 

Woe unto the followers of the moneychangers

For the sins of the fathers shall be cast upon the sons.

Repent now and restore the beliefs, values and ideals

Of the Great Nation and make the land good once again.

The question of obtaining a contempt of court order by the superior court in an appeal of a refusal by the HOA to obey an ALJ order has not been directly addressed until this year.  It is a right specified by statute.

In 2010, in Gelb v. DBFLS (CA CV 09-0744, Ariz. App. Div. 1 (2010)) the issue was raised, but  side-stepped by the court that focused on the unconstitutional status of DFBLS adjudication. 

We now have 2 legal actions directly addressing the important question of the meaningfulness of an ALJ’s order in an OAH decision.  Without enforcement of orders against the HOA, OAH adjudication — now by means of ADRE (real estate department) — becomes a farce!

Pro Se plaintiff Witmer sought enforcement of Arizona Office of Administrative Hearings order (No. 14F-H1415004-BFS) in superior court for HOA to follow CC&Rs. An order to show cause was filed (Whitmer v. Hilton Casitas HOA, CV2016-055080, Maricopa County Superior Court, AZ, decided: March 20, 2017) seeking a contempt order as HOA did not comply with ALJ order. HOA filed for dismissal on grounds that superior court lacked jurisdiction to obtain contempt of court orders for OAH decisions. The court granted the order for dismissal.

Somehow in a confusing, twist of words, the HOA attorney makes a suspect argument that ARS 32-2199.02(B) states that “the proper venue for a contempt of court hearing is the Administrative Courts.” However, the statute reads, as relevant, “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” (emphasis added).

 Superior Court judge granted Defendants Motion to Dismiss for lack of jurisdiction based on, it seems, solely the HOA’s attorney’s (CAI member Augustus Shaw) argument above. It held,

“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.”

 In short, the Superior Court rejected enforcement as specified in ARS 32-2199.02(B).

 In a subsequent event, OAH order (17F-H1716005) that resulted on the need to file for enforcement of the ALJ’s decision occurred in September 2107 (Brown v. Terravita Country Club et al., CV 2017-055475, Maricopa County Superior Court, AZ).  This was a simple records request, which the HOA’s attorney (CAI member Bolen of Carpenter Hazlewood) sought clarification by Brown.   This case has been bogged down in supplemental issues including the dismissal of certain HOA board members.  ADRE has maintained a hands-off posture, rather than fighting “to protect the interests of the general public” as required under law.  As of this writing, there has been no final decision.

Required legislation:  For those of you living in Arizona it becomes a necessity that legislation be enacted to assert the enforcement of ALJ orders by the superior court.

 

Many times, regarding the constitutionality of statutes, I have come across the long standing legal doctrine that the statute is presumed constitutional and that the challenger bears the burden of proving otherwise.

The following opinion in Biggs speaks to statutes that are not a violation of fundamental rights, leaving the fundamentality question unanswered.

Determining constitutionality is a question of law, which we review de novo [ a new case analysis]. When the statute in question involves no fundamental constitutional rights . . . we presume the statute is constitutional and will uphold it unless it clearly is not. (¶ 9).[1]

The justification for this doctrine is explained in the Arizona appellate court opinion in Vong,

“The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.[2]”

In other words, our elected representatives, who had enabled the challenge statute to begin with, will react to the outrage of the people and correct their legal folly. Yeah, right! Not in this dysfunctional climate!  The courts will not interfere, not even when the statute is a horrendous violation of the Constitution.

With respect to determining constitutionality, the court must examine the statute itself, its wording and grammar (including punctuation), and the intent of the drafter or framers of the statute. The intent of the legislature, with respect to HOA-Land statutes in all states, has become very important as numerous constitutionality challenges have arisen lately.  The Court in Biggs made the importance of the intent of the framers very clear,

The Constitution should be construed so as to ascertain and give effect to the intent and purpose of the framers and the people who adopted it. We give effect to the purpose indicated, by a fair interpretation of the language used, and unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning. (¶ 10).[3]

The intent and purposes of the Framers was long upheld by the FCC as concerning the media providing equal opportunity to reply on public issues.  “The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues.[4]”

But President Reagan did not see it that way when he vetoed fairness legislation in 1987.

“This type of content-based regulation by the federal government is, in my judgment, antagonistic to the freedom of expression guaranteed by the First Amendment,” Reagan said in his veto message. “In any other medium besides broadcasting, such federal policing of the editorial judgment of journalists would be unthinkable.”[5]

As it has come to pass, the power of the people has been slowly eroded and replaced by that of the business special interests.  In Arizona, for instance, the legislative bill manual advises against inserting “legislative intent’ wordings as it may require the sponsors to defend themselves at a later time. “4.19. Generally, intent sections (also called “purpose” or “legislative findings” sections) should not be used in a bill.[6]”

And so, the people, and especially the “citizens” of HOA-Land, are faced with an insurmountable obstacle to fairness and justice when attempting to challenge the constitutionality of HOA statutes.

 

References

[1] Biggs v. Betlach, No. CV-17-0130-PR (Ariz. November 17, 2017).

^[2] Vong v. La Vie,  CA-CV 13-0423, (Ariz. App. Div. 1, 2014).

[3] Supra, n.1, ¶ 10.

[4] “The death of the Fairness Doctrine and the rise of HOA-Land media bias”.

[5] Id.

[6]  The Arizona Legislative Bill Drafting Manual 2017 – 2018.  

On Nov. 9, 2017 CAI issued an internet news release on the Yahoo Groups e-list, CAIerelease@yahoogroups.com, to selected members.  This release, as usual, touts the greatness of CAI, but this time it’s an outright member survey.

CAI Member Needs Assessment Survey” release. Its stated purpose was to allow “us to hear directly from our members and ultimately gather a better understanding of the essential needs and significant challenges our members face living in today’s community associations.

I am a member of the Group, but not surprisingly apparently a persona non-grata member as I don’t receive copies of releases nor can I see the survey results.   Instead, if you are not a member, you can rely on the summary provided in the news release as no other ‘facts’ are provided. However, the release does state, “SELRES_2d85eb01-5a56-42d3-8b8a-67b5beb0dd1eSELRES_037bd84e-972f-44be-9885-377f4a303540SELRES_e236a0bf-ec96-4d49-acfe-a9872651b5daCOMMUNITY ASSOCIATIONS INSTITUTE (CAI) RELEASES MEMBERSHIP SURVEY.”  But whereSELRES_e236a0bf-ec96-4d49-acfe-a9872651b5daSELRES_037bd84e-972f-44be-9885-377f4a303540SELRES_2d85eb01-5a56-42d3-8b8a-67b5beb0dd1e?

The short release goes on to simply assert that,

[T]he most important issues facing community associations are uniformed boards, increased legislative/regulatory oversight . . .. CAI members are concerned about state regulations impacting community associations, and an overwhelming majority of CAI members surveyed (92 percent as compared to 89 percent in 2013) agreed that CAI advocates on behalf of community association interests and responds to legislative, legal, and regulatory activities. 

In short, very short, CAI makes the claim that overwhelmingly it’s members support its lobbying activity for HOAs that are opposed to state regulation. Isn’t CAI supposed to lobby for its industry, which can be loosely classified as HOA services and not for HOAs? The pertinent lobbying would be, naturally, for the advancement of its vendor members as a 501(c)6 trade organization should be advocating.

CAI rightfully argues that boards are largely uninformed, but it fails to identify CAI, the international HOA educator, as the culprit for providing self-serving propaganda rather than the truth of the matter.  (See in general, HOA Common Sense: rejecting private government).

But, who are these members of this business trade group? Surely not HOAs that are consumers of CAI’s member services. CAI fails to inform readers that its membership does not include HOAs per se, and that only a minority of 32.8% (as of 2016) of its members are “volunteers.”  In my Sept. 2017 analysis of CAI’s “Fact” Book, (CAI 2016 Factbook: looking into the ‘facts’), I summarized the CAI Indiana Chapter data from its survey of some 23 state chapters. (The Indiana Chapter data can be found here). I wrote,

I came across data from the CAI Indiana chapter for 2015 and 2016. The percent ‘volunteers’ per HOA for both years was 32.7% and 32.8%, respectively. (Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.)

Furthermore, a clear majority of these “volunteers” are HOA board members.  CAI recruits these “volunteers” by offering discounted fees for multiple directors from the same HOA, paid for by member assessments.  Talk about a legal loop-hole!

It’s not surprising that CAI’s factual survey is unprofessionally biased and constitutes self-serving propaganda, which has undoubtedly been distributed to the policymakers, state legislators, the media, and the general public. Shame, shame!

And yet there are many who still believe that CAI is the path to substantial HOA reforms for homeowner rights.  They refuse to take off their rose-colored glasses and deal with the reality of some 44 years of CAI’s failure to solve HOA problems; failing in its reason for being when formed in 1973.