Tag: law

Competency of judges; HOA reform policy

I offer the following commentary on  the detailed 10-page Rosie Manins’ article[1] who quotes David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.  I present relevant quotes that provide an understanding of the realities of a judge’s competency. As we well know with respect to HOA-Land lawsuits, their competency is in question as well as their difference to alleged expert opinion and dominance by CAI attorneys.

My annotations are in square brackets [ ].”

“’The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they’ll stray into troubled waters,’ said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 ‘that the transition from attorney to judge is difficult’.

“’Most of the time we’re elected or appointed as judges, and one day you’re a lawyer practicing probate law, and the next day you’re on the bench. We have this really important piece of our republic, and yet we don’t have a solid training system for preparation.’ Sachar said.

“’The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession,’ he said. ‘Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn’t appear to know what they’re doing.’”

“You can’t just wave a magic wand and say [to a newbie judge], ‘Here’s how all courts are going to do this,'” he said. “You’re stuck with ‘Hi, welcome to the judiciary. Here’s a couple of bench books. Follow the path of people you saw before you.'” [And guess who that may be?]

[As to the political side of judicial appointments,]

“’Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons’, Mann[2] said. ‘You really have to kind of narrow this down to what has the political process done to judicial selections,’ Mann said ‘Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge’ [And CAI is outspoken on its efforts to influence judges and legislators[3]]. ‘And it may be that it’s producing younger, more political judges that have less qualifications and experience to be a judge.’

It is my sincere hope that advocates will understand that HOA reform legislation is political in nature and that they are facing a powerful Evil Empire that dominates the playing field. Advocates must lose their fear and retaliate using the abundance of legal authority on their side —  case history, the existing laws, and CAI’s own words, statements and attitudes.

They must come armed before the courts to chasten and hold judges accountable for their lack of HOA knowledge and their dependency on the CAI promoted business judgment rule[4]. But the advocates must first become educated themselves.

Advocates must advocate – publicly recommend and support HOA reform policy before state legislatures, county planning boards, the media, and homebuyers at large —and not just post among themselves on social media.  Patrick Johansen, Steve Horvath, Raelene Schifano, Jim Lane, Deborah Goonan,  and  others have started programs to influence the decision-makers. I congratulate all of them.

[1] As posted by Joe Homes post in HOA Fight Club (FB), Is The State Court System Setting Judges Up To Fail? (Rosie Manins · 2023-10-27).

[2] Judge Julian Mann III, chair of the American Bar Association‘s Judicial Division and retired Administrative Law Judge. 

[3] “Community associations should build effective relationships with decision-makers—public officials at all levels of government and regulatory agencies. Association attorneys should advocate educational programs for judges and other attorneys to foster deeper understanding of the community association housing model.”  (“Public Policy Paradigms,” Community Next: 2020 and Beyond, Community Associations Institute. Notable Trustee member is Vice Chair J. David Ramsey, esq., Becker & Poliakoff pa, Morristown, NJ, who is very active in ULC and UCIOA revisions.)

[4] See in general, Business judgment rule; understanding the courts.

Beware settlement agreements and gag orders

In reality, Life does not go according to Hoyle.

We are all quite aware that many lawsuits are settled with a gag order attached, especially when CAI is involved (not in this lawsuit).  To my surprise and disbelief, in Arizona, a gag order is not material to an agreement between to parties in a lawsuit.

A recent Arizona appellate decision involved a court ordered settlement conference in which the parties verbally agreed to the terms of the settlement and a written agreement was prepared to be submitted to the court. The homeowners removed the HOA’s version with respect to a gag order, informing the HOA they did not agree to the gag order. The court was informed that the digital recording of the settlement conference was not available for an unknown reason, whereupon the court then ordered litigation and a hearing as to the settlement agreement.  H’mmmm!

The trial court held that the HOA’s version was valid, which not surprisingly was appealed. Following Arizona’s precedent, the court would support the trial court’s ruling “if the trial court’s disposition is correct for any reason.” It seems that the judicial system back’s its own kind – judges make no mistakes. The justification for upholding the HOA’s version was found in Rule 80(a) of the rules of civil procedure.  

First, the fact that the parties agreed to put the agreement in writing doesn’t count if there is an agreement.  Second,

The law “favors enforcement when it is clear that the parties intended themselves to be bound,” and “absent or uncertain terms are not fatal to the enforceability of an otherwise binding contract.

In other words, picky, picky no matter what impact it has on the parties. How can the court hold that an agreement was reached when there are 2 versions and only one party signed? Yes, the judicial system has its flaws!  BEWARE! 

Source: Robertson v. Sierra Pines, CA-CV 23-0069 (ARIZ. App. Div1 (9-14-2023).

HOA home is security against HOA failure

On a FB advocacy group, a member offered advice to another who was in a late payment dispute with their HOA and being sued. She said pay in protest, which is nice but leaves loose ends and can be, and will most likely be, rejected by the HOA.  I replied:

Interesting and I hope it works. Way back an aggravated homeowner in dispute who refused to pay assessments was sued. Rationally, and applying a fair, just and acceptable solution to debt disputes, told the judge that she would place the owed money in escrow until the case was resolved. The judge said, NO! That was way back in 2003 and things are a little bit better now, and there is another judge. Make the plea to the judge and not the HOA.

I’ve come to believe that state legislatures regard HOAs as a state security interest – in contrast to a national security interest– and can impose what amount to martial law that allows the curtailment of your rights and freedoms. In short, it seems that the HOA could not be allowed to fail so pay up or die. At the cost or your home and all your equity in foreclosure. Talk about intimidation!

YOUR HOME HAS BEEN PLEDGED AS SECURITY TO THE HOA, without saying so in your “fully agreed upon’ CC&Rs!

Never, ever say this to the court

In this Arizona appellate decision [1], the plaintiff, Danko, failed to follow the Rules of Civil Procedure that every state has.  The defendant, Leavitt,  filed for dismissal due to a deficient brief, upon which the plaintiff begged the court for leniency for failing to comply with the Rules. He claimed that he was filing pro per, without a lawyer.   Plaintiff further asserted that “his claims should not be dismissed because of “meaningless” rules.” The court “found Danko had not sufficiently pleaded facts to support any of his other claims and dismissed them with prejudice as well” as required by the Rules.

The terse reply by the court makes the point that rules are rules.   

“In furtherance of these goals, we have “a responsibility to see that litigants conform to an acceptable, minimal level of competency and performance and we owe this responsibility to the judiciary, the bar and, more importantly, to all litigants and the people as a whole. An appellant who fails to make a bona fide and reasonably intelligent effort to comply with the rules will waive issues and arguments.”  

“Waived” means the party surrenders all rights to continue.

The court made a strong statement on not granting any leniency to pro per litigants;

Further, we hold litigants like Danko who choose to proceed without representation to the same standards as attorneys. Indeed, requiring a reviewing court to expend significant time and effort to make a party’s arguments for them not only wastes finite judicial resources, but is additionally improper because it trespasses dangerously close to the realm of impermissible advocacy.

Take heed!  Rules are rules. Learn the rules before going to court.

Notes

1.  Danko v. Leavitt, No. 1 CA-CV 22-0525 (Ariz. App. Div.1, 8-17-2023).

HOA willful blindness

An interesting aspect of the law came to my attention unexpectedly arising from the Trump lawsuits: willful blindness. This post takes a broader view of the HOA-Land legalities.

“Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one’s eyes to the high probability a fact exists.” ( The Supreme Court’s Willful Blindness Doctrine Opens the Door to More Wrongful Criminal Convictions | The Heritage Foundation).

The mens rea fundamental principle to uphold a wrongful act  required actual knowledge of  the wrongdoing by the accused, and can be found quite commonly in the statutes. So, evidence of actual knowledge had to be proven. This principle, although it had good intentions, failed to address the question of the accused lying, “I didn’t know I violated the law.  Honestly!”

But what if the evidence clearly shows that it had to be obvious to any reasonable person that the law was being broken?  What then? In the name of justice, the courts accepted the willful blindness doctrine. “C’mon, everybody knows that the act was a violation of the law” and cannot be denied by claiming dumb ignorance.

“the prosecution must show that the defendant was aware of a high probability of the fact in question but deliberately avoided confirming it. The prosecution must prove that the defendant was subjectively aware of the risk involved and that he or she consciously avoided learning about it.” (Willful Blindness Law and Legal Definition | USLegal, Inc.).

HOA willful blindness affirmative defense

I am sure most readers are aware of alleged lies made by the HOA, its managers, and directors, including its lawyers that come as a surprise to the average owner. “They’re lying, they’re lying,” the homeowner shouts to no avail. What to do? Take charge now that you are informed about the law, and even educate your attorney likewise, to raise an affirmative defense.  You charge the HOA with willful blindness as its obvious it violated the law by knowingly turning a blind eye to its actions.  Example, not reading the obvious applicable governing documents or state laws on the issue at hand.

“An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. The party raising the affirmative defense has the burden of proof on establishing that it applies.” (affirmative defense | Wex | US Law | LII / Legal Information Institute (cornell.edu)).

Please take note on how powerful this doctrine is in holding the board of directors and managers to the wire when acting outside the law. It will put stop to their outright falsehoods and lies, and hold then to knowing the law and governing documents. It will require their attorneys to make the law and governing documents clear to the board.