Activist judge interpreting the law

I have presented my case many times, saying that many judges have become activist and in doing so have violated long-standing legal doctrine on the interpretation of contracts and laws.

“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.”

. . . .

An example of this misconstruing of the law — of the 14th Amendment, Section 3 —  

can be seen in the controversial Trump court battles.

“No person shall . . . hold any office, civil or military, under the United States [who]  shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

This CNN opinion by Dean Obeidallah quotes Colorado District Court Judge Sarah Wallace:

“[Wallace] ruled last week that former President Donald Trump ‘engaged in an insurrection’ on January 6, 2021, as defined by Section 3 of the US Constitution’s 14th Amendment. She didn’t disqualify Trump from the state’s ballot, however, finding that the ‘insurrectionist ban’ in the 14th Amendment does not apply to US presidents.”

Wallace added,

“At the time the 14th Amendment was ratified, an insurrection was ‘understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.’  The ‘events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” [However,] ‘for whatever reason the drafters of Section Three [of the 14th Amendment to the US Constitution] did not intend to include a person who had only taken the presidential oath.’”

. . . .

To clarify, her decision is unreasonable and lacking in legal support. She interjects her opinion, my view, that she didn’t think the drafters intended to include the President although the wording of this 14th Amendment, Section 3 speaks to “no person.” That’s plain and simple.  If, as many courts have held when attempting to assert a missing clause into the law, “if the legislature wanted the clause it would have added the clause,” rejecting the lame defense that it was simply an oversight.

No unreasonable HOA expectations

A healthy democratic society cannot be said to exist without  a representative government making fair and just laws. A practical, real-life approach gave rise to the legal concept of reasonableness in an attempt to classify and designate conduct underlying a fair and just administration of the law. The reasonableness doctrine has finally come to HOA disputes in regard to reasonable expectations.

CAI has opposed the doctrine of reasonable expectations as too vague, too iffy, and disrupts the order and structure of the HOA “community.” In its amicus brief CAI argued that “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.”

The full commentary is a lengthy legal exposition examining 3 Arizona cases on the application of a homeowners’ reasonable expectation at time of purchase. Read it here: Reasonableness public policy. “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants

Competency of judges; HOA reform policy

I offer the following commentary on  the detailed 10-page Rosie Manins’ article[1] who quotes David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.  I present relevant quotes that provide an understanding of the realities of a judge’s competency. As we well know with respect to HOA-Land lawsuits, their competency is in question as well as their difference to alleged expert opinion and dominance by CAI attorneys.

My annotations are in square brackets [ ].”

“’The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they’ll stray into troubled waters,’ said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 ‘that the transition from attorney to judge is difficult’.

“’Most of the time we’re elected or appointed as judges, and one day you’re a lawyer practicing probate law, and the next day you’re on the bench. We have this really important piece of our republic, and yet we don’t have a solid training system for preparation.’ Sachar said.

“’The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession,’ he said. ‘Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn’t appear to know what they’re doing.’”

“You can’t just wave a magic wand and say [to a newbie judge], ‘Here’s how all courts are going to do this,'” he said. “You’re stuck with ‘Hi, welcome to the judiciary. Here’s a couple of bench books. Follow the path of people you saw before you.'” [And guess who that may be?]

[As to the political side of judicial appointments,]

“’Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons’, Mann[2] said. ‘You really have to kind of narrow this down to what has the political process done to judicial selections,’ Mann said ‘Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge’ [And CAI is outspoken on its efforts to influence judges and legislators[3]]. ‘And it may be that it’s producing younger, more political judges that have less qualifications and experience to be a judge.’

It is my sincere hope that advocates will understand that HOA reform legislation is political in nature and that they are facing a powerful Evil Empire that dominates the playing field. Advocates must lose their fear and retaliate using the abundance of legal authority on their side —  case history, the existing laws, and CAI’s own words, statements and attitudes.

They must come armed before the courts to chasten and hold judges accountable for their lack of HOA knowledge and their dependency on the CAI promoted business judgment rule[4]. But the advocates must first become educated themselves.

Advocates must advocate – publicly recommend and support HOA reform policy before state legislatures, county planning boards, the media, and homebuyers at large —and not just post among themselves on social media.  Patrick Johansen, Steve Horvath, Raelene Schifano, Jim Lane, Deborah Goonan,  and  others have started programs to influence the decision-makers. I congratulate all of them.

[1] As posted by Joe Homes post in HOA Fight Club (FB), Is The State Court System Setting Judges Up To Fail? (Rosie Manins · 2023-10-27).

[2] Judge Julian Mann III, chair of the American Bar Association‘s Judicial Division and retired Administrative Law Judge. 

[3] “Community associations should build effective relationships with decision-makers—public officials at all levels of government and regulatory agencies. Association attorneys should advocate educational programs for judges and other attorneys to foster deeper understanding of the community association housing model.”  (“Public Policy Paradigms,” Community Next: 2020 and Beyond, Community Associations Institute. Notable Trustee member is Vice Chair J. David Ramsey, esq., Becker & Poliakoff pa, Morristown, NJ, who is very active in ULC and UCIOA revisions.)

[4] See in general, Business judgment rule; understanding the courts.

Georgia court: A Milestone for Fair and Free Elections

Jade Whitter posted  comments in Home Owners Association (HOA) Information (Oct. 27, 2023, FB)[1], on a Georgia appellate case [2] concerning the fundamental right to fair HOA elections. At issue here is the imposition of a quorum on board elections although the documents were silent on a quorum requirement.

Whitter wrote,

“A Milestone for Fair and Free Elections. The Court’s ruling specifically eliminates the draconian measures that obstructed free and fair elections, namely the use of a quorum as a prerequisite for a valid election. This is significant because ‘lack of quorum’ has been used to invalidate annual elections and keep many of the same individuals serving on the Board.”

The homeowners’ attorney praised the homeowner group,

“It should not be taken lightly the dedicated grass roots efforts that it took to bring this coalition of homeowners together under a unified call for fair and representative elections. I am in awe of the W.E Concerned Homeowners’[3] leadership team that was able to coordinate this effort.”

While in the public domain there are no quorum requirements, there is a downside to no HOA elections quorum. A small, highly active and united clique can take control of the HOA where there is general apathy among the homeowners, or their conduct can be described as a cult following – the HOA can do no wrong. BEWARE!

I cannot stress how vital free HOA elections are to a democratically run HOA where constitutional and fundamental homeowner rights need protection. I commented on fair and democratic HOA elections 0n 2 occasions.[4]

“I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.”

“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen.  Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy. You are being conned!”

[1] See Home Owners Association (HOA) Information.

[2] Willis Et Al. V. Water’s Edge, A23A0868 (Ga. Ct. App.), Decided: October 24, 2023.

[3] Concerned Homeowners is a public FB group.

[4] See in general, Reorienting the HOA board – fair elections and HOA Common Sense, No. 5: Democratic elections.

 

AZ CAI attempts to unduly influence the courts

In Arizona’s Thompson v. Albertson,[1] the Arizona Supreme Court ruling in Kalway[2] was put to the test and challenged by CAI in its amicus brief.  Kalway held that

“The general-amendment-power provision and general-purpose statement were not sufficient to provide notice of future amendments. We interpret such restrictions to reflect the reasonable expectations of the affected homeowners.  We hold that a general-amendment-power provision may be used to amend only those restrictions for which the HOA’s original declaration has provided sufficient notice.”

The appellate Court addressed CAI’s 42-page amicus brief, which the court does not usually perform but special attention was warranted.  In short, CAI sought the appellate court to modify the AZ Supreme Court’s ruling that the case was a memorandum and not mandatory precedent. And as such, it did not consider its decision as mandatory precedent.  Therefore, the ruling applied only to the case at hand.

Not the first time CAI attempted to influence the Court. In 2011 CAI AZ had tried 3 times to have the court’s decision that OAH adjudication of HOA disputes was unconstitutional. I had filed as pro se amicus that was accepted and resulted, as I firmly believe, resulted in changing the appellate court decision as an opinion to a memorandum without precedent standing.

“The [AZ Supreme] Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.”[3]

[In Thompson] Discussion, Section IV. The Amicus Curiae Brief

“¶31 Community Associations Institute (‘CAI’) filed an amicus curiae brief requesting ‘clarification’ and possible ‘limitation’ of Kalway. Whether Kalway should be clarified or limited is a question for our supreme court. . . .  (‘The lower courts are bound by our decisions, and this Court alone is responsible for modifying that precedent.’). We therefore decline CAI’s invitation to reach beyond the specific facts of this case to provide ‘direction and guidance.’”

Simply said, the appellate court rejected CAI’s attempt to overrule the AZ Supreme Court.

####

Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 10 10-24-2023

AMICUS CURIAE BRIEF OF COMMUNITY ASSOCIATIONS INSTITUTE (CAI) (FILED WITH THE WRITTEN CONSENT OF THE PARTIES)

Mark Lines – #020553

SHAW & LINES, LLC

Counsel for Community Associations Institute

First, CAI continues to misrepresent itself and claim it’s “serving more than 74 million homeowners . . . CAI is representing not only itself, but also its tens of thousands of members on this important issue.” CAI fails to inform the Court of that the homeowner “volunteers” constitute an estimated 32% of its membership and have an estimated meager 14% representation in its governing board of trustees.[4]

CAI membership, at most, consists of a miniscule .05% (.00048).

Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.

‘Volunteers’ (CAVL) represent a miniscule .016% (.00016) of HOA members.

Second, the CAI argument. The AZ Supreme Court decision in Kalway[5] made reference to the vague term, “reasonable expectations” when considering the validity of HOA amendments. (The supreme court realized that the common procedural covenant that any amendment passed by the necessary vote was valid regardless of its impact on the members).

What the original declarant might have intended, and what owners first reasonably expected of the eventual use and improvement of those lots must be considered in the context of time, and reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.

“Indeed, a “covenant can be amended to refine it, correct an error, fill in a gap, or change it in a particular way.” Kalway,  . . . That’s the power and right of the owners collectively, through a majority vote, if the dictates of time demand it.”

CAI had argued against the reasonable expectations test as being too vague when all was clear and precise in the existing amendment procedures.  The Court rejected the amicus brief because  CAI had the audacity and the arrogance to ask the appellate court to overrule a supreme court decision.  Unreal!

There cannot be change without change

As long as advocates remain silent and fail to criticize CAI’s misrepresentations —
“candor to the tribunal” ethical code violations —  before the court, the legislature, and the media CAI will remain the voice of HOA-Land.

“To succeed you must accept the world as it is  and rise above it.”

[1] Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 1)  10-24-2023.

[2] Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532.

[3] (See AZ Supreme Court denied hearing the Gelb Petition to restore ALJ adjudication of HOA disputes).

[4] See “Why CAI is the Evil Empire.

[5] Supra n. 2.