Tag: legal represenation

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DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published.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.

HOA representative government and consent of the governed

George Washington wrote in his Farewell Address (1796), the Constitution “is the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles . . . .”  The Declaration of Independence asserted “that to secure these [inalienable] rights Governments are instituted among men, deriving their just powers from the consent of the governed.”

These two quotes contain the fundamental principles of representative democracy adopted by means of a social contract, the Constitution, which are freedom of choice, ”just powers,” and “consent of the governed.” By virtue of these fundamental principles of democracy, HOAs cannot be considered as democratic governments. Period!

In his article explaining the meaning of the Constitution,[1] Edwin Meese III explains that “consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed.” 

In order for HOA governments to be just, legitimate and compatible with the Constitution these fundamental principles must be honored and supported. HOA “constitutions,” those CC&Rs, are not compatible with the US Constitution.

Meese further addresses the differences between “consent of the governed” and “will of the majority” that is a pro-HOA mantra. “The ‘consent of the governed’ describes a situation where the people are self-governing in their communities . . . into which the government may intrude only with the people’s consent.”

He explains that the “Will of the majority” is a political mechanism for decisions to be made by the government. In other words, the BOD makes decisions on behalf of the members based on its view of the majority will or some survey of the members. In short, in a representative democracy, like that attempted by the HOA legal structure, not all of the members are in agreement with or consent to the decisions of the BOD. It raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues.

Meese contends that the Founding Fathers[2] understood this weak point in a democratic government and the need to “insure domestic tranquility.”[3]

[A] government [must rest] not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy. . . . Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.

The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.  Furthermore, the CC&R are not even based on contract law 101 with its requirements for freely entered into, full disclosure, and explicit agreement to be bound,  but on the real estate doctrine of equitable servitudes.

To learn more about your loss of these rights and freedoms see The HOA-Land Nation Within America.

 

References

[1] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[2] See in general, The Federalist Papers, #51, James Madison who explained, “Justice is the end [goal] of government. It is the end of civil society.”

[3] Preamble to the Constitution.

AZ HB 2371 allows unlicensed managers to represent HOAs in disputes

This video covers the Arizona Senate GE committee hearing on a bill that would allow unlicensed HOA managers to represent HOAs.  It shows the AZ legislature abdicating and supporting HOA-Land rule over democratic rule, and over the Constitution. It shows a banana republic, “I see no problems,” mentality.

See Arizona’s HB 2371 empowers unlicensed HOA property managers to avoid UPL.


Here are my comments at several points in the video.

My opening statement

Hi, I’m George Staropoli, also known on the internet as HOAGOV.   I am once again, reluctantly, before the camera with another HOA legislative documentary. My material comes from events at the Arizona Legislature, and from the legislators themselves.

Viewers will be alerted to the following comments at appropriate points in the video. They are provided to assist you in understanding of what’s really going on.  With this in mind, I strongly recommend that you take time to read my HB 2371 Commentary (on this date) on my website before continuing — the link is now being shown.

This video will also be posted to my HOA Constitutional Government website along with my detailed comments — the link is on the screen.

Let’s view the hearing . . .

Opening comments by Ugenti:

You just witnessed the sponsor’s “opening statement.”  Note her motive for the bill: Let me quote her, “Every year there is a plethora (many, many) of personal HOA legislation . . . as well as industry HOA legislation.”  She stated that she combined all those bills “working through a stakeholder process and allowing the stakeholder process to filter the proposed legislation   . . . representing a consensus from the AZ realtors, and AACM (AZ Association of Community Managers, the beneficiary of this bill).”  She further added “to spare the members from the agony of voting up or down on personal pieces of legislation.”

Now, what was she saying?  First the “personal” bills come from homeowners while the other legislation is “HOA industry legislation.”  She put the bills through a stakeholder process and used the process to filter the bills. She failed to say, however, that no homeowner advocates participated in this stakeholder filtering process, which was brought to light in her House GOV testimony, and not denied.

Ugenti said nothing  about fixing HOA problems and making HOAs better for everyone, especially the real stakeholders — the homeowners.  Not even entertaining an amendment to address issues of substance relating to constitutionality, fair and just laws, and of other homeowner concerns as emailed to her.

Now let me explain that in her earlier statement to the House GOV committee, she also said that she wanted to avoid any controversial bills.  But, think about it.  If there is serious opposition, based on authoritative sources, wouldn’t that that create a controversy?  So, her choice was to deny any opposing views, and only pick the special interest agenda – the stakeholder agenda.  Isn’t Ugenti failing to understand that these problems are not singular or personal to just one homeowner?  I mean, after hearing more of the same from others and the media, you would think she could take a hint!  Apparently not!

Homeowners appear to have been given short rift, and have been placed “at the bottom of the food chain,” defenseless and being gobbled up by everyone else.  And here I thought our representatives are supposed to represent the people, not the moneyed special interests.

Art. II, Sect. 2, of the AZ Constitution states, “Governments . . . are established to protect and maintain individual rights.”  Did I miss something?

Furthermore, in an outright act of favoritism toward the special interests, as shown in the video, Ugenti asked for questions that she or the stakeholders can answer.

Let’s return to the video . . . .

Homeowner email:

Please understand what has happened in this staged scenario with this constituent email, which the legislators viewed as having a “personal issue” with her association  —  homeowner owners only bring personal problems while the special interests deal with non-personal agendas.

With the several email dealing with issues and problems of substance, why was the single email chosen for airing before the committee?  Why? Because it serves to reinforce the sponsor’s false argument that homeowners only deal in personal issues, which justifies her leaving out the homeowners from serious, authoritative HOA industry specialists! There was no mention of the non-personal, substantive constitutional issues brought to the attention of the legislators in my emails and commentary, or in two other homeowner advocate emails that I have personal knowledge.  Nothing! Silence!  Not a word!

The legislators “hear no evil, see no evil, and speak no evil.”

Let’s return to the video . . .

 

Conclusion

You have now witnessed another episode of “the unspoken alliance of no negatives about HOAs.”  Did you hear any of the objections that were emailed to the committee? NO!   You did not hear that the bill would allow unlicensed HOA property managers to represent HOAs in small claims court, or before an administrative law judge at the Office of Administrative Hearings?   Did you know that even licensed paralegals are not allowed to represent others?  Did you know that the current law applies to all hearings from all agencies before OAH?

Don’t tell me that the legislators, AACM, CAI, or the sponsor of  HB 2371 don’t know about the 2012 AZ Supreme Court opinion on HOA managers  engaged in the unauthorized practice of law, and the decision against for numerous UPL violations against one CAI/AACM member?  C’mon!  The legislators were sent copies of these decisions.  The viewers of the hearing video would not think any such events against unlicensed mangers had occurred.  In court, hiding exculpatory evidence (evidence in favor of the defendant) is a crime!  But, apparently it’s OK in the legislature.

And rather than do what is just, fair and reasonable, and that is to require proper licensing for managers if they are being allowed to represent HOAs, HB2371 is silent on education!

What we have here is a special law for special private entities, without even a whisper of any legitimate justification.  The bill is an unconstitutional special law violating the AZ Constitution, ART II, section 13, which states, “No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”  In other words, no special laws for special people are permitted.

Section 32 states, “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.”   Where are the “express words” in this bill to override the Constitution?

What you have witnessed is the homeowner, the real stakeholder, has been cut out from the legislative process. What we have here is legislative support, cooperation, entwinement, and a symbiotic relationship between the state and the HOA, thereby making good cause for HOAs to be declared arms of the state, or state actors, subject to the 14TH Amendment protections.

It must still pass the Rules committee and the final vote of the entire Senate before becoming law.  Passing this bill into law would be unconscionable!  

WELCOME TO THE NEW ARIZONA OF HOA-LAND