HOA Constitutional Government

Thanks to the vast amount of information found on the Internet I was able to get a copy of the 23 Page CAI brief.  It was filed by 3 Arizona CAI law firms, Maxwell & Morgan, Krupnik & Speas, and Carpenter Hazlewood under the umbrella of Community Associations Institute.  Recall that the HOA attorney, Goodman Law, is also CAI.

Going directly to the question of depublication, in its Conclusion,  

“CAI urges this Court to grant review and consider depublication of the Opinion . . . so that it cannot be cited as binding authority in any future case affecting community associations.” (My emphasis).

 Now think for a moment. Why is CAI asking for depublication before a decision is rendered by the SC that could vacate the appellate court’s opinion?  Is it because CAI doesn’t expect to win and its brief is just hot air, except for the depublication request?

Surprisingly, it seems that the Justices bought this CAI request and ordered depublication.  I have seen several cases where the appellate courts had also adopted CAI’s request outright.

I will skip any analysis of the legalities  as  argued by CAI as they are irrelevant because the appellate opinion was allowed to stand, also part of CAI’s request. Was this some sort of compromise to get the depublication order issued? I wonder. Nothing surprises me anymore.

Misrepresentation and misleading information

Since the SC admitted to being misled or on a mistaken assumption, as “improvident” is defined, I will address CAI misinformation and misrepresentation that seemed to skip notice of the Justices.  CAI starts with the usual implication that it is an educational organization with no mention that as of 1993 it had become a business trade nonprofit heavily lobbying state legislatures across the land.   And that it has no HOA as members as of 2005 since HOAs are consumers of HOA member services.

“CAI is a national nonprofit research and education organization.  Its members include community associations and board members, other community volunteer leaders. CAI regularly expresses its position on issues of potentially national concern and advocates on behalf of community associations and their residents before legislatures, regulatory bodies and the courts.”

CAI claims to represent “not only itself, but also its tens of thousands of members on this important issue.”  The SC is not told that its membership is drawn from less than 9.6% of all HOAs. (See  CAI 2016 Factbook: looking into the ‘facts’).

CAI Reasons for Depublication

Playing the authority on HOA-Land, CAI agrees with me that this case is of

“general importance and statewide but also national concern, as the impact on community associations is certainly substantial and states look to other states for guidance in this developing area of law.”

No wonder it wants the opinion shutdown with its depublication request. It could not deal with a strong measure of due process of law as applied to HOAs.

CAI then makes its pitch to defer to the legislature,

 “The Arizona Supreme Court has long held that the determination for what is ‘good public policy’ ” is for the executive and legislative departments and that the courts must base their decisions on the law as it appears in the constitution and statutes.”

 “This is an area of law that the legislature should control whenever possible- not the courts.”

 In other words, the Supreme Court has no place in interpreting and applying the laws as it is charged to do. CAI repeatedly informs the SC that the legislature set all of this out in the statutes and why is the SC making new law, in CAI’s mind.  We know why CAI insists on letting the legislature do it. Because it controls HOA legislation by its in depth lobbying.

Once again I urge Arizonans to express their outrage by writing the SC Clerk, Janet Johnson at  scclerk@courts.az.gov, and ask that the order be reconsidered.   I urge the media, who tell their viewers that they can be trusted to tell the truth and to ask hard questions, to ask hard questions now.  Ask the Justices to explain just why!

 

After failing to obtain the AZ SC’s order in Turtle Rock[1] on its web pages, I did  a Google search and found what appears to be a docket document dated July 3rd.[2] It contained the following order:

IT IS ORDERED  as follows:

1. The Order granting review is vacated;
2. The Petition for Review is denied;
3. the Court of Appeals Opinion shall be depublished.

Scott Bales [Chief Justice]

Additional information provided is the mysterious comment (my emphasis), “* It appears to the Court that the grant of review in this case was improvident.”  Furthermore, it listed CAI as having filed an amicus curiae some 6 weeks after the petition was filed.  That explains CAI’s awareness of the SC order.

The statement of “improvident” caught my attention and I knew there was something not quite right. A Supreme Court saying, in effect, that it was fooled and made a mistake?  Admitting that I’m not a lawyer, but having read hundreds of HOA cases,  never heard of it!  And the obvious question is: How did they conclude that a mistake was made?

To make sure we understood what happened, here’s Black’s Law dictionary’s definition of “improvident”:

A judgment, decree, rule, Injunction, etc., when given or rendered without adequate consideration by the court, or without proper information as to all the circumstances affecting it, or based upon a mistaken assumption or misleading information or advice, is sometimes said to have been “improvidently” given or issued. (2^nd Ed.).

Of or relating to a judgment arrived at by using misleading information or a mistaken assumption.(7th Ed.).

The only possible candidate for providing additional information to the AZSC had to come from the CAI amicus brief.  Further confusing is the docket entries of May 17 and July 3 regarding partial settlement briefs from both parties (Fisher was a Pro Se).  Since the appellate decision still stands, and Fisher won that decision, was she content and had no interest in the possibility of being overturned by the SC and so settled?  I wonder.  Many unanswered questions.

If the case was settled, why the need to depublish the appellate decision unless the settlement agreement so specified that to the SC.  If so, then we have an instance whereby the parties dictate to the judicial system to unjustifiably seal the case. This preposterous! Outrageous!

I am at a loss to understand why the SC would act in such a manner that would serve to hide violations of due process of law by HOAs. It seems to affirm the public policy, and legal doctrine, that HOAs are private contracts not subject to the 14^th Amendment. And so what!

Don’t expect the Justices to come forth and explain themselves. Never will happen!  Still, I would email the Clerk of the SC urging  that the SC explain in detail why such action was taken, in apparent contraction of legal doctrine to make court decisions public.

While Rule 111 does not mandate a justification for its action, unlike in the case of a lower court sealing a decision, how did the SC justify such a decision in spite of its “substantial public importance.”

You can email Janet Johnson at  scclerk@courts.az.gov.

References

[1] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)). See AZ Supreme Court prohibits publication of decision on HOA notice of fines.

[2] https://apps.supremecourt.az.gov/aacc/appella/ASC/CV/CV170339.pdf.

A depublication order in the Turtle Rock appeal[i] of an appellate  decision was issued by the AZ Supreme Court on July 3rd, which held that the HOA must provide proper notice by publishing its list of fines in order for the fine to be valid. The appellate court held that the HOA did not publish a list of fines to satisfy the legal notice requirements.[ii]  These fines can then be challenged as unreasonable, as in the case of the Turtle Rock case where a $25 per day fine was found unreasonable.

This issue was a matter of general public importance and should be made public in accordance with the Rules of the Arizona Supreme Court. However, this order for depublication by the SC was a very harsh treatment of the appellate decision and is tantamount to sealing the decision from the public.

Having read several hundred opinions, both federal and state  across the country, this is the first time I ever saw a depublication order.  Under AZ Rules of Supreme Court,[iii] the SC can issue an opinion which is then publicized in the law journals and serves as precedent; it can issue a memorandum order that restricts the publication of the decision,[iv] making it non-binding precedent – judges do not have to follow the decision; it can essentially hide the decision from the public with a “depublication” order.

Yet, somehow, a CAI member firm, Carpenter Hazlewood, apparently has knowledge of this SC order and has published it to its followers.[v]  Carpenter Hazlewood was not an attorney of record in the appellate case, who were other CAI member law firms of Goodman Law and J. Roger Wood formerly of Carpenter Hazlewood. But, there is no access on the SC’s web pages to the SC’s order of July 3^rd by the public at large.

CAI tells its subscribers that Turtle Rock is no longer law, but “Although the Turtle Rock case cannot be cited in a future fine case as ‘precedent’, a judge could decide a similar future case and reach the same conclusion.”  Yet, homeowner rights advocates and the public in general are left in the dark.  Without knowledge of the appellate decision due to depublication, the homeowner is prevented from adopting a similar line of argument — a sorely needed winning argument in the name of justice — to use it as its complaint in a future legal action.

This decision by the SC could be seen as a restriction on my free speech rights, and that of the public in general, with respect to neutral public political content.  It, as in the case of ADRE and its listing of CAI as a resource,  is not content neutral but biased toward the HOA.

References

[i] Turtle Rock v. Fisher, Ariz. CV-17-0339-PR (2018).

[ii] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)).

[iii] AZ Rules of the Supreme Court, Rule 111.

^[iv] See the Arizona Supreme Court memorandum order in Gelb v. DFBLS, CV 10-0371-PR (2011).

[v] See email of July 11, 2018 by attorney Chad Miesen, “Final Word on Turtle Rock.”

Looking at the latest release of CAI’s “Community Matters,” the 2018 version is substantially the same as the 2005 version.  In this propaganda brochure you will not find the following words:

• Government
• Bill of Rights
• Constitution
• Just
• Justice
• Waiver or surrender of rights

You will find the word “fair,” but only in reference to paying your fair share of the assessments.

The reader is told that “it is essential . . . that buyers . . . agree to comply with CC&Rs” when they buy into an HOA controlled property.  But don’t explain how this agreement took place. A buyer would reasonably say he didn’t sign any CC&Rs so there’s no agreement under contract law 101.  What took place was the acceptance of a deed that said the property was subject to CC&RS, and by the very fact that the buyer took hold of the deed he was implicitly having agreed to be bound.  How about that?

The defense argues that it is binding under the real estate law of equitable servitudes – was the buyer ever told this – and he was given fair notice to read and object to the CC&Rs.  Objecting to the CC&Rs was tantamount to NO DEAL!  Is this buying under pressure? Take it or leave it, making the CC&RS an adhesion contract?

But no need to let the buyer know these things; he’s in love with the property as his new home.

This document goes on to channel the reader’s mindset about the CC&Rs into physical things as “landscaping, maintenance, satellite dishes, clothes lines” etc. and away from serious matters of governmental powers that make him a second-class citizen without constitutional protections.

This document does warn the potential buyer that ”Some people bristle when faced with rules that must be enforced to maintain established community standards.”  Well, most people know and live with rules called state laws and ordinances.  However,  their reasonable expectations of enforcement never entertain just how draconian the HOA enforcement can be, rivaling the most authoritarian of governments.  The adhesion contract CC&Rs, and state laws, do not protect them under the equal application of the law requirement of the 14^th Amendment, because the HOA is a private contract.

There is no separation of powers doctrine that would include a judiciary to protect citizens as in the public domain.

Their laughable solution is to blame the homeowner for not getting involved and make sure things run right.  The adhesion CC&Rs and the flawed legal structure of the HOA are never the culprit, nor is the Board that functions without any oversight body to protect the homeowners.  “Issues often arise because of unrealistic expectations, misinformation and misunderstanding,” CAI acknowledges.   Guess who is the primary cause for all this misunderstanding?  You got it!  The one and only HOA expert on HOAs, CAI.

And yet, state legislators hear no evil, see no evil and speak no evil of HOAs.