Tag: legislature

Collected Writings — holding the judiciary accountable

In my BJR Con Job paper I end with  the failure of judges to be fully educated with respect to HOA-Land, but also the failure of  law schools to fully educate graduating students in regard to the HOA legal scheme.  Homeowners in court quickly find out how ignorant are the courts and lawyers with regard to HOAs. The chief reason is the dominance of the “CAI School of HOA Governance”[1] —  the CAI Ministry of Public Enlightenment and Propaganda.

It is important then that we address this state of affairs by educating the judges, the law school administrators, and the graduating law students. One way is to present a consolidated picture of the failures of the courts to uphold the Constitution as I have attempted with my HOA Constitutional Government: the continuing battle. (See ACT NOW below).

What has this to do with legislative reforms, you may ask.  There is an interplay between the legislature and the judicial system — separation of powers — whereby it is up to the courts to uphold and defend the Constitution from violations. As we know,  unfortunately, the courts have accepted and supported unjust HOA legislation!

 I can only recall one comprehensive attempt to accomplish this task by reporter Judy Thomas of the KC Star (August 2016, not currently available to the public without signup) with her extensive coverage of HOA board of directors conduct.[2]

* * * *

CALL TO ACTION

“The protection of the rights of free citizens depends upon the existence of an independent and competent judiciary.” 

First read the book, if only the Amazon description, book Preface, and selected issues of your choosing. Then send a Kindle or paperback copy to your state legislative leaders, the clerk of your state supreme court and any related education of judges division.

(Example from the AZ Supreme Court Education Div.)

Also include the deans of the law schools and persons in charge of programs (like a course in HOA related laws), and The Federalist Society whose mission is to educate law students by exposure to real cases, laws, and issues.

Purchasing the book alone will demonstrate to the above persons our commitment and concerns regarding the longstanding failure of the judicial system to support “equal justice under the law.” Sending copies will provide the documented framework, the evidence on record, containing the acts and views of judges in their own words.

ACT NOW!  

You can buy the 145-page book on Amazon:

Kindle (eBook) version    $ 9.95;     Paperback version:      $15.95

References

[1] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[2] See in general, “KC Star: problem with HOA? Don’t go to CAI”.

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) . . .

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).

Activist judge interpreting the law

I have presented my case many times, saying that many judges have become activist and in doing so have violated long-standing legal doctrine on the interpretation of contracts and laws.

“The Constitution should be construed so as to ascertain and give effect to the intent and purpose of the framers and the people who adopted it. We give effect to the purpose indicated, by a fair interpretation of the language used, and unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning.”

. . . .

An example of this misconstruing of the law — of the 14th Amendment, Section 3 —  

can be seen in the controversial Trump court battles.

“No person shall . . . hold any office, civil or military, under the United States [who]  shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

This CNN opinion by Dean Obeidallah quotes Colorado District Court Judge Sarah Wallace:

“[Wallace] ruled last week that former President Donald Trump ‘engaged in an insurrection’ on January 6, 2021, as defined by Section 3 of the US Constitution’s 14th Amendment. She didn’t disqualify Trump from the state’s ballot, however, finding that the ‘insurrectionist ban’ in the 14th Amendment does not apply to US presidents.”

Wallace added,

“At the time the 14th Amendment was ratified, an insurrection was ‘understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.’  The ‘events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” [However,] ‘for whatever reason the drafters of Section Three [of the 14th Amendment to the US Constitution] did not intend to include a person who had only taken the presidential oath.’”

. . . .

To clarify, her decision is unreasonable and lacking in legal support. She interjects her opinion, my view, that she didn’t think the drafters intended to include the President although the wording of this 14th Amendment, Section 3 speaks to “no person.” That’s plain and simple.  If, as many courts have held when attempting to assert a missing clause into the law, “if the legislature wanted the clause it would have added the clause,” rejecting the lame defense that it was simply an oversight.

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.