Tag: justice

AZ judicial conduct comm. on hidden HOA attorney case: who let the cat out of the bag?

In my June 10th post, Judicial misconduct complaint filed for sealing records in AZ case against HOA attorney, I brought to your attention the fact that the records on a case involving a CAI member attorney sued for aiding and abetting and disgorgement could not be found on the court’s public access website.   Not even a notice that the case was sealed.  The complaint alleged that the “disappearance” of the records from public view was a violation of the Code of Judicial Conduct, Rule 123(d).

A response was received from the Commission on Judicial Conduct Staff Attorney who was more concerned with “shooting the messenger” rather than with taking a few minutes, like I did, and verify from the court records themselves the truth of my allegations.  Not even mentioned in her response.

My reply to the Staff Attorney, in part, reads,

The tone of the letter gives the impression of another angry person filing wild and unsupported accusations against a judge. It is condescending, insulting and attacks the messenger without any reference to conducting a duty bound investigation into the easily verifiable facts — the court records themselves.

The information that I provided is more than sufficient for a bona fide investigation of the facts by the Staff Attorney.  Just 10- 20  minutes on the Internet Pinal County case public information web page, followed by a call to the Pinal County Superior Court Clerk, as I undertook, would quickly and  independently verify the complaint (Exhibit B) that the court records were sealed in violation of Rule 123(d) – public access has been denied and denied without notice. 

The entire reply can be read here . . .

 

What makes a good HOA lawyer?

A good lawyer is highly skilled in creating doubt and confusion through the use of semantic deconstruction.  By “deconstruction” I mean analyzing, dissecting and fragmenting the sentence grammatically to isolate individual words or phrases and to explore alternative definitions.  The poster child example was demonstrated by Pres. Clinton: “It depends on what the meaning of is, is.”

Other specific, well known examples are from the judiciary itself, where in the Kelo decision the court redefined “public use,” as found in the 5th Amendment, to mean “public purpose”; and in the Citizens United decision equating a corporation to a real person with rights to contribute to election campaigns.

A good way to understand this tactic is the forest and trees analogy.  The HOA attorneys ignore the description of the forest (the common meaning of the sentence statement) and attempt to redefine the individual trees that make up the forest (the words and phrases used in the sentence).  By redefining the descriptions of the trees, the attorneys create doubt and an alternative interpretation in their favor. And by doing so, they have redefined the forest to mean something else other than what was obviously intended. The statement, as commonly accepted, now has several alternative meanings.

My favorite example is CAI’s insistence that HOAs are not governments but businesses.  CAI makes use of the archaic Marsh v. Alabama public functions test that reduces the long held legal doctrine of a government (the sentence) to a test of a few factors (the trees). Does the HOA possess the functions of a government?  Well, the question can be reversed to ask: Does a government possess the functions of a business?  This approach gets us nowhere.  The “trees” have become the focus, the substitute legal meaning, of deciding the definition of what a government is, and the traditional legal doctrine is summarily dismissed as irrelevant.  It is a defect in our system of jurisprudence.

If you attempt to find the meaning of a vague concept in the dictionary by pursuing the words used to define it, say the word “government,” you quickly find yourself in a circular rut.  Justice Potter encountered this difficulty in Jacobellis v. Ohio (1964) when he wrote that the Supreme Court “was faced with the task of trying to define what may be indefinable,” referring to the difficulty of defining the broad concept of what is pornography.  He admits to not being able to intelligently define pornography, “But I know it when I see it.” 

This sums up the reality of attempting to define concepts that are well understood in our society, but escape a unique and distinguishing definition. Only by specifying examples that distinguish between what is and what is not can a society clearly arrive at an acceptable definition.

These “word games,” as I call them, this one shot redefinition of long held concepts (the court seeks some means to decide an issue and picks one, almost arbitrarily), is very dangerous and undermines a stable society.  It, along with “political correctness,” is Newspeak (from Orwell’s 1984) where a person can no longer make meaningful distinctions about reality, and where black can mean white.

Good lawyer play these word games very skillfully, and the judges follow along with redefinitions to suit the particular issue before them, rather than re-examining the whole concept that is in question.  Opposing lawyers for homeowner rights advocates must not lose sight of the broader picture, the forest.

Complaint filed with NJ Supreme Court for CAI lack of “candor to the tribunal”

A complaint was filed with the NJ Supreme Court against CAI for a lack of “candor to the tribunal” with respect to statements made in CAI-NJ’s amicus curiae brief in Mazdabrook v. Khan.  Excerpts from the complaint letter follow.

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Two attorneys for the Community Associations Institute (CAI) NJ Chapter, Karpoff and Macysyn, sought and received permission to file an amicus brief and to make oral arguments. They signed certifications as to the truth of the statements made and content of their brief. 

I submit that the arguments to file a brief and to make oral arguments contained misrepresentations and false and misleading statements as to the true nature and purpose of CAI.  These misrepresentations lead the Court, and amicus readers, to believe that CAI is not in a conflict of interest position as its true interests, which oppose the interests of the homeowners associations and the of HOA member homeowners. 

The Macysin certification says the brief is brought on behalf of CAI itself, as a friend of the court to help it in its decision. Yet, throughout the certification one is confused as for whom CAI is representing: CAI itself, the HOAs, or the homeowners.  These are conflicting representations.

 In the 24 paragraph certification, Macysin fails to inform the Court of the legal tax exempt status of CAI as a 501(c)6 tax-exempt organization  as of 1992. CAI chose the vendors and became a trade group so it could avoid the limitations of an educational organization and become actively involved in lobbying in all the states. (The usual course of action is for the consumer group, which is seeking assistance, to set up its own nonprofit educational organization. It then would invite the vendors as affiliate or associate, second-class, members).

 It should be clearly understood that the production of harmonious and vibrant communities is juxtaposed to the true interests of the CAI members.  Rather, the best interest of its true members is to keep the HOA heavily dependent upon the services of its attorney and management members, to foster adversarial relations, hostility and divisiveness, and to deny democratic reforms under the state and US Constitutions.  The CAI record before state legislators and in the courts, including here in New Jersey, speaks for itself. 

The CAI-NJ prepared HOA board resolution (Appendix B, page 6), gives the impression that the HOA board’s decision to join CAI is a valid act.  What this resolution accomplishes is to allow the HOA board to address homeowner concerns about a conflict of interest.  It provides the board with a reasonable justification for joining CAI — education for the benefit of the HOA.

However, the basis for a board to sign-off is that CAI is the “Great Educator” and that CAI has no conflict of interest as a business trade group whose tax-exempt grant is to help its members, not consumer HOAs. The resolution does not state that CAI is a 501(c)6 trade group or that since it was created in 1973 to solve problems with HOAs it has failed to do so for the past 39 years, or that it has repeatedly opposed constitutional protections for homeowners. 

Sanctions were sought against these CAI attorneys.

The sounds of silence: failing to publish legal opinion on illegal acts by HOA managers

If the guardians,  those disciplinary and oversight entities  protecting the integrity of the Arizona Supreme Court, which itself is the guardian of the integrity of the State of Arizona, fail in their duties and responsibilities under the Arizona Rules of the Supreme Court, what becomes of us?

Many of you are familiar with the old teaser, “If a tree falls in the middle of the woods, and there’s no one around, does it make a sound?”   Then, if a CAI member firm— an HOA attorney or manager — violates the law and the public is not noticed, did they really violate the law?  And, if there are events leading to the conclusion of abuse and a gross defect in the HOA legal concept, and the media fails to report them to the public, are there really serious defects in the HOA legal scheme? 

Readers of these Commentaries are aware of the serious charges made against a CAI member attorney in DC Lot Owners v. Maxwell & Morgan.  An awareness brought to the public’s attention not by public disclosure, as the records have been sealed by court order, but by a few individuals. 

Readers are now being made aware of the recent State Bar UPL Opinion, 12-01, issued in March 2012, relating to the legal acts that may be performed by HOA managers.  (This supersedes the 2004 UPL opinions previously reported here, and directly applies to HOA managers.  The opinion is based on an interpretation of Rule 31, Regulation of the Practice of Law, of the AZ Supreme Court Rules.)   

I am told that the UPL opinion is available, but not on the State Bar’s web page for UPL opinions, or on any State Bar web page.  Yet, its UPL opinion web page proudly declares,

The State Bar’s UPL (unauthorized practice of law) Advisory Committee now provides attorneys and consumers with non-binding written advisory opinions. The opinions interpret the UPL Supreme Court Rules and the Certified Legal Document Preparer Code.

These are the sounds of silence in HOA-Land.  These are the acts and omissions by the members of that unspoken alliance of No Negatives About HOAs.  These revelations are not the result of public disclosure, but by the efforts of a few individuals.   And these few individuals do not include members of the media.  

One can only conclude that the State Bar also has a public policy of protecting HOAs, and their attorneys and managers.

Judicial misconduct complaint filed for sealing records in AZ case against HOA attorney

A complaint was filed against a Pinal County, AZ judge for the sealing of records in this civil case in violation of the Arizona Rules of the Supreme Court, Rule 123(d) that requires a statement to be made giving the reasons for the sealing of case records.  The case involved charges of aiding and abetting and disgorgement, among others, filed by a court appointed Receiver looking for some missing $650,000 in HOA funds. The charges were against a well-known CAI member attorney.

There is no record of this case on the Pinal County Superior Court official public website, not even an entry that the case was sealed, and not even an entry that the case was dismissed.   This very disturbing act recalls the secret proceedings of Star Chamber justice with its own version of doing justice.  A motion asking the judge to unseal the records was denied by the county clerk, leading to this complaint of judicial misconduct.

The complaint of judicial misconduct was two-fold:  a black-letter violation of law in regard to Rule 123(d), which simple states, “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;”   and a complaint that the entire record of this case has been denied public access.

The judicial complaint set forth grounds for unsealing the records.

On behalf of the American public, and in light of the public’s strong interest in the judicial treatment of homeowner association attorneys and the longstanding public policy in favor of open access to judicial records, the undersigned, George K. Staropoli, hereby moves the Court to unseal all court records in this case.

 Staropoli has operated two nonprofit internet websites to provide nationwide information, news, legal actions, and commentary on events, incidents and developments pertaining to homeowners associations for over twelve years.  They are a blog, HOA Constitutional Government, and an informational site, Citizens for Constitutional Local Government, in support of homeowner rights and in opposition to the inequities of the existing HOA legal scheme. Staropoli has been acknowledged in several legal texts and treatises, and quoted in other books and in the news media.

And in further support of public access,

Rule 123(c), Public Access to the Judicial Records of the State of Arizona, of the Arizona Rules of the Supreme Court pertaining to Judicial Conduct, states that all court records are presumed to be open to the public, except “some court records” for confidentiality, privacy or if in the best interests of the state.  Rule 123(d) requires the court to show cause for sealing “some court records,” including the legal basis for such action.

The Arizona Rules of Judicial Conduct, Rule 81, emphasizes that “an independent, fair, and impartial judiciary is indispensable to our system of justice” and that the judiciary is to preserve the “principles of justice and the rule of law.”  Judges “should aspire at all times to conduct that ensures the greatest possible public confidence.”  It is inconceivable as to what state interests exist that would overwhelmingly override these precepts, and not to inform the public accordingly.

It was then argued that the attorney, Charles Maxwell, comes with unclean hands having been subject to serious sanctions regarding “fraud upon the court” and filing a frivolous suit.  And it was also argued that Maxwell is a public persona as a result of providing seminars and classes in the law to the public regarding HOAs, and as a highly respected member of CAI and its College of Community Association Lawyers. 

Speaking in judicial lingo, the heavy burden falls to the party seeking to hide the records to overcome all of the above.

The Arizona Commission on Judicial Conduct will conduct an investigation of the complaint, No. 12-148, in due order.

For more reading, see,

1.  Allegations filed against AZ HOA attorneys in sealed case

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