Tag: law

The neglected court Rule 11(b)

An informative Arizona case, Potter v. Arizona House [Potter],  brought forth claims that Rules of Civil Procedure 11(b) [FRCP] were violated by plaintiff and sanctions were awarded under 11(c).  Potter in his lawsuit discovery request sought Arizona House of Representatives public records, and also sought communications records between a private,  third party person and the Representative being charged. She refused claiming as a private person she was not subject to public records disclosure laws.

She filed a Rule 11(b) complaint citing (b)(1) and (b)(2) that the request was improper and to harass and delay, and that the claims were unwarranted —  “frivolous”. The court had evidence and ruled that Potter was vexatious litigant – in short just a troublemaker – that didn’t help Potter and the court did not dismiss her charges;  sanctions were justified.

This Commentary brings an important message to those homeowners who have complained on social media about their HOA many times, on many issues, over a period of time. You have probably been seen, not charged, as a troublemaker tying up the court’s time. Not helpful. 

To make my point, allow me to quote the phrase from the old Dragnet TV police series of the 1950s:  “Just the facts, Mame. Just the facts.”

See in general,  HOA members fail to invoke their strongest weapon — Rule 11, representations to the court (2018).

 References

Potter.   Potter v. Arizona House, CA-CV 23-0213, Ariz. App. 1 (2-1-2024).

FRCP-11. Note this FRCP Representations section can also be found in state rules of civil procedure, R 11 (b). Both contain R 11(c) that provides sanctions for violations.

Federal Rules Civil Practice (FRCP-11)

“(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

The Collected Writings TOC 1

Announcing “HOA Constitutional Government: the continuing battle,” is now available on Amazon as a Kindle eBook. See https://www.amazon.com/dp/B0CSC5LCY8. Paperback to follow.

I have included a table of contents of 56-issues reflecting perspectives, views, opinions, and documentation that point the way to HOA substantive reforms.  Readers may not agree, accept, or like what is stated in these issues that have been essentially avoided over the years; they are of immense educational value  and necessary for a realistic picture of HOA-Land. Part 2 of the TOC to follow.

See: HOA Constitutional Government: collected posts.

I.  On Reform Legislation . . .

d.  Decl. of Indep. from HOA government — 2000 . . .

e.  A united, national front to HOA reform legislation (2023)      . . .

f.   Two distinct levels for HOA legislation (2019)   . . .

g.  Analysis of The Homes Association Handbook (2006) . . .

h.  America’s homeland: HOA law vs. Home rule law (2022)        . . .

i.   Preface to HOA Common Sense (2021)    . . .

j.   HOA Common Sense, No. 1: The New America of HOA-Land (2013) . . .

k.  the NJ Supreme Court opinion in the Twin Rivers HOA case (2008) . . .

l.   CAI firmly supports the New America of HOA-Land (2011)     . . .

m. Authoritarianism in America; authoritarianism in HOA-Land (2022) . . .

l.   AZ bill, SB 1148, seeks to restore OAH adjudication of HOA disputes (2011) . . .

m. Arizona’s new “Take That George!” law: defend HOA statutes (2010)           . . .

n.  AZ Rep. explains failure of HOA reform legislation (2013)      . . .

o.  The Florida (HB 1397): police powers and the loss of fundamental rights (2009)  

p.  Landmark FL HOA law imposes criminal conduct (2023)       . . .

q.  Colorado senator’s guide to effective HOA legislation (2013)  . . .

r.  NC reform bills need your support (2023)          . . .

s.  North Carolina: second battleground for people’s rights in HOAs (2013) .  .

t.  CA bill AB 1410 –  a step backwards for HOA homeowner rights (2022)       .  .

u.  Substantive SC HOA reform bill – end foreclosure (2019)       . . .

v.  Effective HOA reform legislation (2023) . . .

w. HOA member Declaration of US and State citizenship (2015) . . .

HOA lawyers take heed! Federal judge chastises lawyers

The NY Times Opinion by retired federal Judge Luttig*, while speaking to the national Trump Era crisis, well applies to HOA lawyers. I am completely mystified by the lack of defense and silence by state attorney generals, constitutional think tanks like CATO Institute, The Heritage Foundation, The Federalist Society, and constitutional lawyers and law schools. Read on!

“Leaders of the legal profession should be asking themselves, ‘What role did we play in creating this ongoing legal emergency?’ But so far, there has been no such post-mortem reflection, and none appears on the horizon.  Many lawyers ‘have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.’

“More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. . . . Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.”

The Opinion is concerned about what, if anything, is being done to rectify this attack on democratic institutions.

“The Federalist Society, long the standard-bearer for the conservative legal movement, has failed to respond in this period of crisis. . . . Principled voices [must] speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily. To do otherwise would be to cede the field to lawyers of bad faith. We have seen in recent years what the unchecked spread of wildly untrue and anti-democratic lies gets us.”

Addressing law colleges failure to educate students, a movement is called for.

“The movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps. The Constitution cannot defend itself; lawyers and legal scholars must.”

In the past I’ve written about the failure of law colleges to include the numerous views and positions on the constitutionality of the HOA legal structure. See “Is CAI’s ‘lack of candor to the tribunal’ intentional?”

*          “The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment,” NY Times Opinion, Nov.23, 2023. By George Conway, J. Michael Luttig and Barbara Comstock.  “The writers are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms. Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute.”

Effective HOA reform legislation

If advocates want truly effective legislative reforms, they must actively support their legislative champions sponsoring these reforms. There have been important successes as a result of the increased call for and proposed reform legislation in several FB social media groups.

However, these reforms MUST address the very broad and larger constitutional issues that deny homeowners rights — rights that people not living in HOAs enjoy. Simply stated, HOAs must be made part of the Union!  The trickle-down effect would be enormous. All homeowners would be protected and treated fairly when their rights and privileges fall under the well understood laws of the land.

Here’s a simple, straight-forward bill first proposed in March 2011 found in Proposed “consent to be governed” statute, the “Truth in HOAs” bill.

“The CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, ‘The association hereby waives and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.'”

Item 4 of the Truth in HOAs Statute (Bill).

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