Tag: Arizona supreme court

AZ 1984 SC opinion ignored living constitution

The Arizona Supreme Court opinion in Planned Parenthood AZ v. Mayes (1984 law) is consistent with their predominant belief in Originalism. These Justices did not accept the view that the Constitution must adapt to society as exists today and be a Living  Constitution. This controversial issue was not discussed in its opinion.

Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism. Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.

Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written and not merely ignore it or reinterpret it to their liking.

Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.

The AZ opinion is a sharp contrast to recent US Supreme Court opinions over the past years:

  • Brown v. Board of Education (society has changed and separate but equal is unsupported; 1954)
  • Roe v. Wade, 1973, overturned 2022. (women have privacy rights to abortion)
  • Affordable Care Act (“Fans of judicial inventiveness will applaud once again,”2010)
  • Citizens United (corporation freedom of speech  and can fund campaigns; 2010)
  • Hobby Lobby (separation state and religious beliefs; contraceptives, 2014)

Understanding how the  courts form opinions; 1864 abortion decision

The surprising opinion by the AZ Supreme Court in the 1864 abortion law[1] is an excellent learning tool for HOA advocates on how opinions are reached. The Court went to length to explain the affected laws and how the courts, in general,  proceed to interpret the statutes upon which a case is based.

Here are some key take-away reasonings (emphasis added).

  • [T]he question presented is . . . whether the later statutes “repeal or otherwise limit” the earlier statute.
  • Clear and unequivocal language determines a statute’s meaning, reading each word, phrase, clause, and sentence in such a way to ensure no part of the statute is void or trivial.
  • This analytical approach is premised on foundational trust in legislative competency, and this Court “presume[s] that the legislature knows the existing laws when it enacts or modifies a statute.”
  • If the statutory language is ambiguous . . . we may use alternative methods of statutory construction, including examining the rule’s historical background, its spirit and purpose, and the effects and consequences of competing interpretations.
  • “A statute is not ambiguous merely because the parties disagree about its meaning,” it is ambiguous if the “meaning is not evident after examining the statute’s text as a whole or considering statutes relating to the same subject or general purpose.”

In my view the above “rules” allows the court to defend its opinion, sometimes evident that it was previously decided  no matter what.  “We will give him a fair trial before we hang him.”

As to the opinion itself, the Justices recite a series of legislative statutes and amendments on abortion rights over the years. In consideration of the above, please be patient and see what a court may have to deal with.

  • The federal 1864 statute applied to the Arizona Territory (1901) and adopted by the State of Arizona in 1913. In 1928 the AZ Legislature adopted statutes on abortion as a crime.  ARS §§13-211 to – 213.
  • In 1971 with Planned parent v. Marks the appellate court remanded back to the trial court that held the statutes were unconstitutional (1973). On appeal the statutes were considered constitutional. Subsequently, ROE was overturned.
  • The AZ statute was inconsistent with ROE, making the AZ statute unconstitutional once again and did not allow enforcement of the AZ law ARS 13-211. See Nelson). The Legislature did not repeal  ARS 13-211.
  • In 1977 the statute was recodified as §13-3603.
  • In June 2022, the Supreme Court overturned Roe, thereby eliminating the federal constitutional right to abortion and returning “the eliminating the federal constitutional right to abortion. (see Dobbs).
  • FINALLY, in 1973 we have the runner up to today’s opinion when AG Brnovich and Planned parenthood fought over what law applies. The Court held that the 1864 law was never nullified nor repealed by the AZ statutes.
  • The Court concluded: “We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603 . . . .”

Note 1. Planned Parenthood AZ v. Mayes, as AZ AG, No. CV-23-0005-PR (April 9, 2024).

CAI amicus brief: candor to the tribunal

Still think CAI is on your side and can be trusted to act in good faith?  Here’s the latest CAI propaganda bordering on a violation of the Rules of the AZ Supreme Court, R42, E.R. 3.3, (found in Rules in every state):

“Candor Toward the Tribunal: (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;”

(3) offer evidence that the lawyer knows to be false. 

(b) A lawyer who represents a client . . .  and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

In CAI’s amicus brief to the AZ Supreme Court in CAO v. PFP Dorsey (Case No: CV-22-0228-PR, 2024), we see repeated half-truths about who CAI represents and what are its purpose and functions.  Some excerpts from “Interest of CAI as Amicus Curiae” (emphasis added),

  • is an international organization dedicated to providing information, education, resources and advocacy for community association leaders, members
  • CAI’s more than 43,000 members include homeowners, board members
  • serving more than 74.1 million homeowners
  • CAI is representing not only itself, but also its tens of thousands of members on this important issue.

CAI misrepresents its position and status.  It’s a miniscule organization and no way close to the estimated AARP’s 66% of 55 plus persons. The shortcomings include:

  • Failure to state it’s a business trade nonprofit, 501(c)6 and not an educational (c)3; (everybody knows does not count)
  • As a business trade entity, it is not allowed to have HOAs, the consumer of CAI’s member services, as members;
  • Not informing the court that “individual volunteers” constitute a minority class of membership, and
  • Failure to inform that the Management of CAI is controlled by a Board of Trustees in which its “volunteers” members are only 13% of the Board that is dominated by the management class;
  • ·         a 15-member Trustee Board supported by 2 groups of 12 representatives and the Homeowners Leadership Council  of only 6 representatives;
  • The current Trustees Board has a president from Dubai and a president-elect from the US, both managers; 6 more managers; 2 “HOA managers,” 2 lawyers and 3 others. (See Board of Trustees).
  • Failure to inform that no HOA board of directors, to my knowledge, has granted CAI the right to represent or speak for the HOA before government tribunals;
  • ·         Exaggerating its scope of influence and alleged representations when its total membership is less than 36% of HOAs or persons living in an HOA.  (Based on 2007 & 2012 data, See HOA homeowner membership in CAI is a mere 36%; Who controls CAI and its 50 state HOA lobbying committees?)
  • ·         As of this writing, CAI claims 45,000 members; 75.5 million residents, and 365,000 HOAs. With an estimated population of some 331 million people, 23% live in an HOA  — .06% of HOA residents are CAI members!

Would you consider the brief being honest and forthwith to the Court?

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.

Advocate files AZ supreme court amicus brief fighting unjust laws

We must make the injustice visible.

We must provoke until they respond and change the laws.

(Mahatma Gandhi)

An AZ supreme court amicus brief was filed by Jonathan Dessaules on behalf of the Arizona Homeowners Coalition in CAO v. Dorsey (CA-CV 21-0275) (Waiting for the Court’s decision).  Dessaules argues that the statute in question, ARS 33-1228, conflicts with the Arizona Constitution, Article 2, Section 17, and “a statute cannot circumvent or modify constitutional requirements”.

The intricate legality and constitutionality of private entities—the HOA — taking of another party’s property rights – a homeowners — is discussed in detail.  I frequently quote the brief to ensure accuracy in my review.

ARS 33-1228 “allows condominium associations to force the sale of a nonconsenting owner’s property for someone else’s private use” and is the justification for investors to shut down the HOA. However, “When a state statute conflicts with Arizona’s Constitution, the constitution must prevail.” Furthermore, it is argued that “The legislature may not enact a statute which is in conflict with a provision of the Arizona Constitution.” Consequently, the Legislature lacked the authority to enact 33-1228.

(Stay with it!) The brief goes on to say that ARS 12-1131 provides that “eminent domain may be exercised only if the use of eminent domain is authorized by this state, whether by statute or otherwise, and for a public use as defined in this article.” Public use does not allow for “forcing the sale of a holdout owner’s property to be used by the investor who owners a majority of the other units within the condominium.”

The HOA, Dorsey, counterclaimed that it wasn’t a sovereign and § 1231 doesn’t apply to private organizations, ignoring § 12-1111 that permits individuals the right of eminent domain takings. Consequently, again, it is argued that 12-1228 is invalid.

An additional powerful argument is raised that the Declaration is an adhesion contract. “A declaration is generally a ‘standardized form offered to consumers on essentially a take it or leave it basis.’” And to my long awaited legality, the brief states that “Without the contract even being presented to the purchaser for their signature,” the contract is imposed on the buyer.

Again, we see the  doctrine of “reasonable expectations” as applied to adhesion contracts. “Contracts of adhesion will not be enforced unless they are conscionable and within the reasonable expectations of the parties.” Dessaules maintains that including unconstitutional  statutes in the Condo Act is “substantively unconscionable.” Furthermore, as I have argued many times, “a waiver of a constitutional right is not within reasonable expectations of the parties.”

This is a solid amicus brief by an advocate fighting for HOA reforms to protect members’ rights and privileges.  It does not pretend to accept unjust laws.

* * * *

I would like to thank Dennis Legere, Arizona Homeowners Coalition,  for hiring attorney Jonathan Dessaules to file this important, to the point, excellent amicus brief.