The neglected court Rule 11(b)

An informative Arizona case, Potter v. Arizona House [Potter],  brought forth claims that Rules of Civil Procedure 11(b) [FRCP] were violated by plaintiff and sanctions were awarded under 11(c).  Potter in his lawsuit discovery request sought Arizona House of Representatives public records, and also sought communications records between a private,  third party person and the Representative being charged. She refused claiming as a private person she was not subject to public records disclosure laws.

She filed a Rule 11(b) complaint citing (b)(1) and (b)(2) that the request was improper and to harass and delay, and that the claims were unwarranted —  “frivolous”. The court had evidence and ruled that Potter was vexatious litigant – in short just a troublemaker – that didn’t help Potter and the court did not dismiss her charges;  sanctions were justified.

This Commentary brings an important message to those homeowners who have complained on social media about their HOA many times, on many issues, over a period of time. You have probably been seen, not charged, as a troublemaker tying up the court’s time. Not helpful. 

To make my point, allow me to quote the phrase from the old Dragnet TV police series of the 1950s:  “Just the facts, Mame. Just the facts.”

See in general,  HOA members fail to invoke their strongest weapon — Rule 11, representations to the court (2018).

 References

Potter.   Potter v. Arizona House, CA-CV 23-0213, Ariz. App. 1 (2-1-2024).

FRCP-11. Note this FRCP Representations section can also be found in state rules of civil procedure, R 11 (b). Both contain R 11(c) that provides sanctions for violations.

Federal Rules Civil Practice (FRCP-11)

“(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

collective writings — immediate release

FOR IMMEDIATE RELEASE                 Contact: George K. Staropoli, 602-228-2891

The battle for HOA Constitutional Government

Surprise, AZ – February 1, 2024 — For over 60 years, since 1964, the controversial issue as to the validity and constitutionality of Homeowners associations (HOAs, PUDs, POAs, condos) has been ignored by state legislatures, attorney generals, the judiciary, and the media.

In order to set the record straight and to educate and reorient the policy makers, the constitutionality of HOAs is raised in the collective writings of long time HOA reform activist and nonlawyer, George K. Staropoli. In his  January 9, 2024 published HOA Constitutional Government: the continuing battle,  he has presented 56 of his 1,300 social media posts over his 24 years as a reform activist.

These posts – as originally written and not as legal advice or opinion — contain his views based on documented legislation, case histories,  statements and various releases by the parties including the lobbyist entity, in their  own words.

The case is made that 1) the HOA declaration of CC&Rs is ab initio unconstitutional and invalid; 2) the CC&Rs are a devise to escape the application of constitutional protections; 3)  HOAs are permitted to do things municipal governments are not allowed; 4) there is no genuine, valid support for “agreed to be bound” under the application of equitable servitudes constructive notice doctrine; and 5) the judiciary has failed to educate  judges and law students on laws and principles affecting the HOA legal scheme.

It is argued that this irresponsible state of affairs is primarily the result of the dominance and influence on the policy makers by the national HOA lobbying trade group.  All the state HOA “Acts” and laws constitute “new law,” and the HOA legal scheme has been treated as sui generis; mixing laws of the land with new meanings and definitions to sell the HOA legal scheme to all Americans.

These Acts are nothing more than parallel laws to the Constitution, and superseding the Constitution in many court decisions. In a selected entry Staropoli quotes CAI’s brief to the NJ court in 2006:

“In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”

* * * *

Get HOA Constitutional Government – amazon.com

HOA Constitutional website: http://pvtgov.info. Staropoli has had his per se AZ Supreme Court amicus briefs challenging HOA constitutionality accepted by the court.

Collected Writings — holding the judiciary accountable

In my BJR Con Job paper I end with  the failure of judges to be fully educated with respect to HOA-Land, but also the failure of  law schools to fully educate graduating students in regard to the HOA legal scheme.  Homeowners in court quickly find out how ignorant are the courts and lawyers with regard to HOAs. The chief reason is the dominance of the “CAI School of HOA Governance”[1] —  the CAI Ministry of Public Enlightenment and Propaganda.

It is important then that we address this state of affairs by educating the judges, the law school administrators, and the graduating law students. One way is to present a consolidated picture of the failures of the courts to uphold the Constitution as I have attempted with my HOA Constitutional Government: the continuing battle. (See ACT NOW below).

What has this to do with legislative reforms, you may ask.  There is an interplay between the legislature and the judicial system — separation of powers — whereby it is up to the courts to uphold and defend the Constitution from violations. As we know,  unfortunately, the courts have accepted and supported unjust HOA legislation!

 I can only recall one comprehensive attempt to accomplish this task by reporter Judy Thomas of the KC Star (August 2016, not currently available to the public without signup) with her extensive coverage of HOA board of directors conduct.[2]

* * * *

CALL TO ACTION

“The protection of the rights of free citizens depends upon the existence of an independent and competent judiciary.” 

First read the book, if only the Amazon description, book Preface, and selected issues of your choosing. Then send a Kindle or paperback copy to your state legislative leaders, the clerk of your state supreme court and any related education of judges division.

(Example from the AZ Supreme Court Education Div.)

Also include the deans of the law schools and persons in charge of programs (like a course in HOA related laws), and The Federalist Society whose mission is to educate law students by exposure to real cases, laws, and issues.

Purchasing the book alone will demonstrate to the above persons our commitment and concerns regarding the longstanding failure of the judicial system to support “equal justice under the law.” Sending copies will provide the documented framework, the evidence on record, containing the acts and views of judges in their own words.

ACT NOW!  

You can buy the 145-page book on Amazon:

Kindle (eBook) version    $ 9.95;     Paperback version:      $15.95

References

[1] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[2] See in general, “KC Star: problem with HOA? Don’t go to CAI”.

Business Judgment Rule: an outstanding con job!

In short, the business judgment rule (BJR) is an unconstitutional delegation of legislative powers to a private entity.  The rule essentially allows the judge to defer to the HOA board as best to decide the matter,  denying the due process of law for citizens to be heard in court.  It is an unequal protection of the laws! However, the lawsuit was before the court to obtain an independent and supposedly unbiased application of the law. Think about it! The court is rubberstamping the BOD’s decision. Say what!

It’s nothing more than an understandingly successful con job fostered upon HOA members.  The BJR is a poster child for the need for advocates to be fully educated about the laws, government, and the courts.  STOP THE CON!

First, be aware that you will not find “business judgment rule” anywhere in state statutes and codes, that’s why it’s referred to as a “rule.”  What the reader will find are references to the duties and obligations of directors and officers to be fair, without conflicts, and acting in the best interest of the HOA. This is the basis for the misguided presumption.

Let me explain as best as I could and keep this complex issue as simple as possible. The courts’ adoption and continuing support for  the BJR avoids and ignores several constitutional issues at play: 1) delegation of legislative powers, 2) the HOA as a state actor, functioning in the place of municipal government, and 3) the judicial scrutiny doctrine testing the constitutionality of a laws. 

Read the full paper here: the con job

standing up for HOA reform legislation

The publication on Amazon of my paperback Collected Writings (for Kindle version) is the latest in my long-term plan and strategy to achieve HOA reforms across the country. An opportunity exists for seriously motivated owners and advocates to come to the aid of the HOA reform movement on a national scale, and call attention to the invalid HOA legal scheme.

It’s simple: put your $$$$ where your mouth is.  By purchasing Collected Writings on a national scale on a leading international website, Amazon, our outcry for reforms can no longer be denied. You can purchase for others, or for a group of others. Amazon will not permit price discounts for these books.

An unworkable alternative at this time would be to set side a percentage of the profits into a nonprofit account to be used to support statewide lobbying of selected reform bills. But this would require substantial purchasers/donators in the order of 10,000 or more.

For those who do purchase these important issues, all presented in one collection, you can write and submit an Amazon review —  no charge.

Of course, there will be a few who will claim  that he’s just looking to make some money. Over my 22+ years  I have received minuscule payments after spending some $10,000 of my own funds.