Tag: CAI

Arizona court protection of CAI member attorneys

The Arizona case, DC Lot v. Maxwell & Morgan, against a CAI HOA attorney regarding some $650,000 in missing HOA funds is closed or sealed.  A court order is needed to unseal it. Even the court ordered closing and the reasons for its action are sealed. The public is being kept in the dark.  Why?  Now I can understand that maybe there are investigations or discoveries going on that certain parties shouldn’t know about, but this is a civil case, not criminal.

Remember, this is a case brought by the court appointed Receiver and not by just anybody else. The CAI attorney law firm of Maxwell & Morgan is being sued for aiding & abetting and disgorgement, among other things. Maxwell & Morgan are still practicing law. Maxwell has had a few sanctions against him. Why the secrecy?

The Arizona Capitol Times covered the underlying story in 2009, so there’s no secret anymore. The secret is the fact that a CAI member attorney is being sued for some serious wrongs. And if by some chance it is felt that open court records would diminish DC property values and that’s the justification for complete secrecy, something is rotten in Denmark and in Arizona.

Rule 123 of the Arizona Rules of the Supreme Court addresses the closing, “sealing,” of case records. R 123 allows the judge to seal it on his own, in the interest of the public, or upon motion of a party. What is the public interest being served here? Generally, the closing of a case, excluding the usual personal info like social security number, proprietary business data, etc., relates to juvenile and criminal proceedings.

R 123(c)(1) Open Records Policy. . . [T]he records in all courts . . . are presumed to be open to any member of the public . . . . However, in view of the countervailing interests of confidentiality, privacy or the best interests of the state public access to some court records may be restricted . . . . (My emphasis).

(d) Access to Case records. Upon closing any record the court shall state the reason for the action, including a reference to the statute, case, rule or administrative order relied upon.

It appears Rule 123(d) has been violated as there is no public record of the seal order. R 123(d) can’t mean that the reasons for closing records are to be kept secret, too, can it? Now, that would require extreme level of public protection, maybe national security level, to “erase” all the records, don’t you think? The case just “disappeared like smoke in the wind,” to quote colleague, and only because I had obtained the case number way back when has this fact come to light! What could justify a complete blackout?

It has similarities to another CAI member (Carpenter Hazlewood) case in which the Maricopa County superior court judged failed to give reasons for denying my motion to intervene (required so I could appeal the denial) in the OAH statute constitutionality case (Phoenix Townhouse v. AZ DFBLS), which was decided by default. And then all my submissions to the court were ordered stricken and the clerk was ordered not to accept any further materials from me. That material contained evidence that the “real person in interest” no longer existed as he no longer owned a lot in the HOA in question. Yet the decision was allowed to stand.

I am seeking assistance from concerned parties to help unseal these records, which smells of HOA attorney protection, and denying the people their right to public disclosure.

References

What happened to the AZ lawsuit against HOA attorney for aiding & abetting missing $650,000?

AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute

Amicus

What happened to the AZ lawsuit against HOA attorney for aiding & abetting missing $650,000?

In 2009, homeowners in DC Lot Owners Association obtained a court appointed Receiver to find out what happened to some $650,000 in missing HOA funds. CAI members, and CCAL members, Maxwell & Morgan were the HOA attorneys.  (See Arizona Capitol Times Oct. 7, 2009 article, Casa Grande HOA stripped of powers over accusations of theft and fraud).

In 2010, the Receiver then filed suit against Maxwell & Morgan and Charles Maxwell, personally — DC Lot Owners Assn v. Maxwell & Morgan, CV 2010-004684 — charging aiding & abetting, disgorgement, and breach of ethical duties among other charges.  As of this date, some 18 months after filing the complaint, the Pinal County, Arizona Superior Court shows no record of the case number, or of a complaint being filed naming DC Lot or Maxwell & Morgan as parties.  There is no record of a minute entry order to seal the court records, leaving the public totally ignorant of this important case involving HOA attorneys.

After some persistence, it was determined from a call to the Pinal County Clerk’s Office that the case was indeed sealed, no date given.  Why is the public being shut out?  Who ordered the sealing of the records?  The Judge?  Or was it pressure from the national HOA lobbying organization to squelch bad publicity about one of its self-declared, honored CCAL attorneys?  There is no legitimate reason for sealing the records of this case.  What happened to the $650,000?  Who is responsible for the loss?  The public has a right to know!

I am pursuing the matter seeking the help of media organizations to unseal the records.

Legislative protection of HOAs: replacing US organic law with HOA organic law

Organic law is the fundamental basis of a government. The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA governed planned communities. In contrast, the U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi). The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government.

 

Arizona protectionism

How many times have homeowners sought justice before the legislature only to be told that they have recourse to remedy any slights by “voting the bums out”? Yet, when the time came to put some teeth into fair elections laws for HOAs, laws that would allow a fundamental function of a democratic government to work properly, the Arizona Legislature answered with a resounding NO! (21 – 9 final Senate vote on HB 2160). Where is the justice?  And justice is the hallmark of a legitimate government.

 The Arizona Legislature, for the fourth or fifth year, obstinately refused to tell HOAs hands off regulating public streets, even with respect to parking cars protected by municipal ordinances. Maricopa County Sheriff Arpaio, who on numerous occasions vehemently stated that he upholds all the laws, rejected policing public streets in HOA-Lands. SB 1113 died, and HB 2030 is sitting in limbo waiting for a floor vote for final acceptance.

 As of this date, only 2 bills of the 19 HOA bills were sent to the Governor, and one was vetoed as “too confusing” for the HOA board to deal with. HB 2484, which was amended by the conference committee to make it more HOA attorney friendly, which means more homeowner unfriendly, is now a “NO” bill.  Of the 5 Arizona HOA bills in this session that provided for penalties against the HOA governments, none were found acceptable: HB 2160, HB 2484/SB 1468, HB 2455, HB 2731, and SB 1240.

 

The HOA can do no wrong

 It is quite evident that HOAs are de facto state-protected “sanctuaries” — de facto independent principalities by the failure of legislatures to pass enforcement bills against HOA board violators. The HOA is treated by the legislature like the sovereigns and kings of long ago – the HOA board can do no wrong, no need for checks and balances, and no need for accountability. It appears that the HOA boards have become Godlike in the eyes of the legislators!

And everywhere the public interest people, the legal-academic aristocrats and current day Philosopher Kings, who clamor for individual and private property rights see no evil, hear no evil, speak no evil. It appears that, “unaccountable HOA government is better than public government with its protections,” has become their dogmatic principle. The Goldwater Institute promotes local government by means of restrictive covenants. “A model law authorizing a transition from government-controlled local zoning and planning regulations to private restrictive covenants.” (See the 2011 report, Model Legislation, Decentralized Land Use Regulation Act).

 

The social contract is disappearing

 It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years ago — that loose collection of colonies that our Forefathers rejected as unworkable. And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature. The Social Contract (“Man was born free, and he is everywhere in chains”) of Rousseau and John Locke has been slowly falling by the wayside, little by little.

The social contract theory of government maintains that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept corresponding duties to protect themselves and one another from violence and other kinds of harm. The US Constitution and all state constitutions are examples of the social contract theory, as opposed to the various HOA statutory Acts that are based on the Uniform Common Interest Act (UCIOA). UCIOA has served for state laws in a handful of states, while other states have modified it somewhat and still others used it as a basis for their statutes.

 The initial UCIOA of 1984, revised in 2008 with a questionable separate and detachable model Bill of Rights Act, flowed from The Homes Association Handbook of 1964, that joint effort by FHA, ULI (formerly the National Real Estate Foundation), and NAHB. (The Handbook was prepared with the “collaboration” of such entities as, the Veterans Administration, The Office of Civil Defense, and the Public Health Service).

 

 

How did it happen?

 Milton Mayer best describes what is happening in America when he sought answers as to why the good, average people of Germany let the Nazi Party take control prior to WWII. His words are applicable to today’s HOA-Land.  In 1995, in They Thought They Were Free, he wrote,

 

What happened was the gradual habituation of the people, little by little . . . . This separation of the government from people, this widening of the gap, took place so gradually and insensibly, each step disguised. . . . [Mayer believed that the good people went along] in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.

Welcome to the New America of HOA-Land

 

And you’d better believe it!

Was I wrong in 2006 about CAI and HOA independence?

My research into the historical role of CAI can be found in the 2008 The Foundations of Homeowners Associations and the New America, “Part II, The National Lobbyist for HOA Principalities.”  Part II is subtitled, “Community Associations Institute: Dominating the Emergence and Acceptance in America of a Quiet Political Revolution in Authoritarian, Contractual Private Local Government.”   It was primarily based on the 2005 book, Community Associations, partially funded by CAI and ULI and written by Donald R. Stabile. 

I concluded Part II with,

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments.  In effect, the super, privatized agency to replace the US Constitutional system of government.

This was written back in 2006, before the 2008 revision to an eBook and the 2010 addition of Part III. 

The subsequent acts and actions by CAI include the behind the scenes support for imposing and promoting   the top-down, “one law fits all,” UCIOA laws for adoption by the states.  Its subsequent acts and actions also include positions taken before state legislatures over the years that support and reinforce the denial of due process and the equal application of the laws for HOA members.  And there is CAI’s performance as presented in CAI continues to ignore the Constitution for the HOA constitution that clearly makes the case for CAI’s rejection of and secession from Constitutional government.

Some may call such behavior, seditious.

I don’t think I got it wrong.   

Reference

Seditious:  “Given to or guilty of engaging in or promoting sedition.”

Sedition:  “Conduct or language inciting rebellion against the authority of a state.”  

CAI continues to ignore the Constitution for the HOA constitution

CAI continues its stand against HOAs being held to the US and state constitutions.  This is a second case, the first being CBTR v. Twin Rivers, 929 A.2d 1060 (2007). Sort of an argument for secession to an independent principality status where all residents would be regarded as “expats” (expatriates).

In the Twin Rivers case, the CAI amicus brief to the NJ appellate court warned about “the unwise extension of constitutional rights to the use of private property by members [in HOAs].”

Here’s what CAI had to say in this more recent NJ case, 4 years later. Note that it’s a “putative” brief. Aside for being paid by a party, not indicated here, a putative amicus brief can bring up arguments not raised by the parties for the “edification” of the court. This appears to be CAI – NJ’s position.

Excerpts from the “Putative Amicus Curiae Brief” by CAI – NJ to NJ Supreme Court, July 27, 2011

Whatever rights common interest association members have to express themselves regarding association issues arise not from the State Constitution but rather from statute, from contractual provisions of the association’s governing documents, from the fiduciary duty owed by the association trustees, and from concepts of fundamental fairness.

The ability of members to communicate with each other thus may be said to be an implied covenant in the By-Laws, a fiduciary obligation of the organization, and/or due to fundamental fairness to enable members to participate in community affairs and governance.

A governing board’s regulations are enforceable only if they satisfy the business judgment rule, that is, they are authorized by statute or the governing documents and the board’s action is not fraudulent, self-dealing or unconscionable. [citing Twin Rivers].

Because the unit owners have other statutory, contractual and legal remedies to protect them from overreaching by the Association, there is no need to apply the constitutional free speech clause. For that reason as well, the appellate majority opinion should be reversed.

Mazdabrook Commons v. Kahn, No. 67,094, (NJ 2011) (Not yet decided).

In other words, who needs the Constitution? We have our top-down, business profiteer’s CC&Rs private contract, and laws that mimic and are almost identical to the CC&Rs. Who needs the NJ Constitution, too.

See Twin Rivers and NJ HOA free speech rights, redux.