Tag: legislature

AZ bill reasserts state supremacy over HOAs

For several years at the Arizona Legislature bills with a very limited restatement, or reminder, that civil government controls public streets were proposed.  Each year they were defeated by the special interests —  read that to include the HOA boards acting as representatives not of the homeowners, but of the legal fictitious person, the HOA.

 
This year we see Arizona’s CAI LAC co-chair Scott Carpenter writing in his Arizona Legislative Session blog – surrounded by his firm’s advertising, links and buttons to pay fines, but speaking for himself, says he – about intrusions into the government of the independent HOA principalities.  He objects to Sen. Harper’s HB 2140, a bill to prohibit HOAs from denying homeowners their second amendment rights to carry arms, or more correctly, from prohibiting HOA interference with all those rights protected under Article II of the Arizona Constitution.  Article II is Arizona’s Declaration of Rights, the state’s version of the Bill of Rights, which all states have in one form or another.
 
Carpenter’s law firm had also fought to have the statutes providing for an independent tribunal to hear HOA disputes by DFBLS/OAH, which provided due process protections with fair and just hearings, declared in violation of the Arizona Constitution.  He now stands in opposition to and objects to the recourse to the Arizona Constitution to protect all the rights of homeowners.  Apparently he sees the Constitution as working solely on behalf of the HOA principality, but not for the homeowner— as it secedes from our constitution and from our system of democratic governance.  Welcome to the New America of HOA-Lands.
 
Carpenter continues his plunge into the secession from local government by HOAs, echoing as Robert H. Nelson discussed in Chapter 20, “Neighborhood Secession”, Private Neighborhoods: the transformation of local government (Urban Inst. Press 2005), while seeking the protection of the Arizona courts to enforce the HOA “constitution.”   (Interestingly, Private Neighborhoods references this writer’s 2000 statement to the Arizona Legislature on a Homeowners Bill of Rights, p. 102).  Carpenter cannot have it both ways!  He cannot deny constitutional protections for homeowners and then seek those protections for the HOA!   Such a position would be a repudiation of what this country stands for, and his oath to support the Constitution that he took when he was admitted to the State Bar:  “The Oath of Admission to the Bar:  I, (state your name), do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arizona;”
  
What a sad state this country has come to when the legitimate political government of the state must reassert itself as the supreme law of the land.
 
Congratulations to Sen. Harper for this long awaited bill in support of the people.

Advocate submits amicus brief in AZ supreme court appeal of HOA due process

I submitted a motion requesting the court’s permission to file an amicus curiae brief in the AZ Supreme Court Gelb v. DFBLS appeal — the unconstitutionality of OAH adjudication of HOA disputes.  CV 10-0371-PR.  Under this option I did need the consent of both parties.  The court will decide on the fate of my amicus brief, and has yet to decide whether or not it will hear the Petition at all.
 
Here are some excerpts:
 
Staropoli provides this amicus curiae brief to assist the Court in understanding the broader political and social environment created by the lack of constitutional protections for citizens seeking justice from private government HOAs. . . . . There are no consumer protection warnings and notices such as “truth in lending” and “truth in advertising.”  The Attorney General’s office  refuses to act on homeowner complaints . . . . The Real Estate Dept. (ADRE) has failed to enforce its Commissioner’s Rule . . . A.A.C. R4-28-1101(B), Duties to Client . . . .  All of which raise serious issues of consent with full knowledge of life within the HOA regime.
 
.  .  .  . 
 
The issues before this Court are serious questions of the adjudication of HOA disputes by an independent tribunal in a “leveled” hearing process that permits the confrontation and questioning of witnesses and the presentation of evidence. The DFBLS procedure requires, as with a civil action, a statement of violation of law that is not currently required under the HOA “notice of a hearing and the opportunity to be heard” mockery of justice procedure, a procedure that encourages an “unconstitutional” taking of private property by private corporate entities.
 
For the foregoing reasons, the Court has no alternative but to reverse the appellate court opinion and quash the Phoenix injunction against hearing HOA disputes by DFBLS. If indeed the other branches of government are of the opinion that the statutes in question are unconstitutional, then they, and especially the only branch with the power to do so, the Legislature, can easily undertake a repeal of the alleged undesirable statutes. But, they choose to remain silent under the “unspoken alliance”. This Court must act in the name of the people.

States Rights: the transfer of power from Washington to private government HOAs

I am pleased to hear the whispers of substantive issues regarding the institution of HOAs that undermine our democratic principles of government as found in this Washington Post article. Among the Christmas cards to one homeowner, a warning, “Several state courts have ruled that by agreeing to abide by homeowners association rules, home buyers relinquish some constitutional rights,” and who points out there are some limits on HOAs. But, I would like to clarify that these few rights had to be fought for in each state legislature on a piecemeal basis – restoring those rights taken away by the HOA declaration “agreement.”

 

The media must follow in this reporter’s footsteps and stop being an active participant in the Unspoken Alliance of “No Negatives About HOAs!” The media must understand that “States Rights” is nothing more than the transfer of political power from Washington to the state legislatures. State legislatures who, in turn, openly and eagerly support the transfer of political power to local private governments — homeowners associations — unanswerable to the US Constitution as required of all public forms of civil government.

 

These unrecognized, de facto governments hold power by the mere filing of a subdivision declaration of covenants, conditions and restrictions (CC&Rs), which is necessary and sufficient to bind unsuspecting home buyers. Declarations that bind without the need for the buyer to have read or to have explicitly signed-off on these relinquishments of constitutional rights, privileges and immunities, absent of any equal protection of the laws, and absent of any due process protections loss of life, liberty and property.

 

Perhaps we shall see a second effort by a number of states to amend and rewrite the Fourteenth Amendment to the Constitution, one that attempts to justify and defend this disgraceful state of affairs by a country once held in high esteem as the ideal democracy. This second amendment would sanction “chartered” private governments with their imposed, unconscionable adhesion agreements that provide for the carte blanche surrender of constitutional rights, and with their powers that include the loss of private property rights by the votes of others without the need for the consent of the affected homeowners. This amendment would legitimize these declarations of CC&Rs that do not recognize any “inalienable rights” at the time of purchase, and that permit ex post facto amendments to render the so-called sacrosanct declaration a meaningless pieces of paper. A travesty of our American democracy.

 

Who will stand up and fight for Lady Justice? Qui Pro Domina Justitia Sequitur (“who prosecutes on behalf of Lady Justice?“, DOJ seal). Who will defend and preserve our principles of democratic government?

The continuing saga to quash HOA due process protections by the State of Arizona

 

On Feb. 11, 2009 my attempt to intervene in the Arizona Meritt superior court appeal of an DBFLS petition was denied. The Meritt complaint was based solely on the superior court decision in Waugaman, as no argument occurred in the Meritt default decision. I was required to file an Answer in defense of the statute to the HOA complaint that sought a declaration of unconstitutional adjudication of HOA disputes by DFBLS.

 

This denial was a surprising event given that Meritt was a default decision on a question of the constitutionality of a statute, and I had introduced the Attorney General’s brief in support of constitutionality from Waugaman in my Answer. In Waugaman, the AG’s brief was given a single line in the decision, a decision that quoted the HOA’s argument: “the Attorney General’s office fails to identify a single way in which the [Department] actually exerts regulatory authority over planned communities.” The focus was solely on whether or not the AG’s brief satisfactorily addressed the one issue of concern to the court, and to the HOA: the extent of regulatory authority. (For a clarification of the roles played by these cases, see my earlier comments on the Gelb petition at Will AZ Supreme Court do justice for 1 million HOA members? )

 

Filing as a Pro Per, this knowledgeable layman argued, among other things,

 

Here [HOA adjudication] there is a direct statutory adjudication authority and there is no need to divine legislative intent and tie it to an agency’s regulatory mission. The decision regarding constitutionality must therefore fall to the Bennett or four-fold test used in both Hancock and Cactus Wren. There is nothing in the Bennett test that considers proper regulatory authority per se. The requirement for adjudication as ancillary to proper regulatory authority is not a requirement of the Bennett four-fold test . . . . (¶ 10, p. 5).

 

In view of the facts in Hancock contained in paragraph 10, this fixation on regulatory authority is misplaced in view of the direct statutory authority to adjudicate contractual disputes in both the Act and planned communities. (¶ 11, p. 7).

 

This essential argument finding error with the Waugaman decision’s focus on the extent of regulatory authority (used as sole authority in Meritt, and essentially repeated in the Gelb appeal) is more elegantly presented in part 3 of the Nov. 30, 2010 Gelb Petition, “III. A.R.S. § 41-2198 is a Constitutional Delegation of Authority to An Administrative Agency and Does Not Violate the Separation of Powers Doctrine.” (p. 11). Gelb argued,

 

The Court of Appeals incorrectly determined § 41-2198(3) violated Article 3 of the Arizona Constitution because there was “no nexus between the regulatory authority or purpose of the DFBLS and the authority to regulate planned communities.” . . . Significantly, the word “nexus” does not appear in either decision. Nor does either case require “a nexus between the primary regulatory purpose of the [agency] and the adjudicatory authority granted in the Administrative Process” as stated in the Court of Appeals opinion.

 

Furthermore, in undertaking this analysis of the constitutional delegation of powers to an agency, the Gelb appellate court stated, “In applying these factors, we are mindful that duly enacted laws are entitled to a strong presumption of constitutionality and any doubts should be resolved in favor of upholding a statute against constitutional challenges.” Additional Petition arguments cited authority in support of a blending of functions, and agency adjudication as assisting the judiciary rather than usurping its powers as held in the Gelb opinion. These arguments attacked the court’s conclusion that the HOA had overcome “this strong presumption of constitutionality” of a statute.

 

Let us hope that the Arizona Supreme Court will hear this Petition and do justice on behalf of the people, an estimated 1 million plus Arizonans living in HOAs and condos.

Will AZ Supreme Court do justice for 1 million HOA members?

The two issues for review sought in the Gelb OAH constitutionality Petition to the Arizona Supreme Court are, in my layman’s view: 1) a legal procedural issue centering on the appellate rules of court, ARCAP 13(b)(3), and 2) the real issue at hand of the constitutionality of OAH adjudication of HOA disputes (technically, the authority of DFBLS to receive complaints that are forwarded to an ALJ at OAH). In both the Gelb appellate opinion and the earlier Meritt superior court ruling the basis for the decisions was the identical analysis of the same two Arizona cases, Hancock and Cactus Wren.

 

My commentary will focus on the first issue: ARCAP 13(b)(3) that relates to the procedure for filing a cross-appeal. It involves some contradictory or vague wording as to when a party must file a cross-appeal. A cross-appeal is just an appeal brought by the other party, the appellee, raising its own issues for review. Gelb maintains that the HOA had to file a cross-appeal and it didn’t. The rule in question, ARCAP 13(b), reads:

 

3. The brief of the appellee may, without need for a cross-appeal, include in the statement of issues presented for review and in the argument any issue properly presented in the superior court. The appellate court may affirm the judgment based on any such grounds. The appellate court may direct that the judgment be modified to enlarge the rights of the appellee or to lessen the rights of the appellant only if the appellee has cross-appealed seeking such relief.

 

The Petitioner/Appellant believes that the appellate court enhanced the HOA’s rights above than was specified in the superior court decision, and the HOA had violated the rule. Therefore, the decision was invalid, without force. The Petition points out that the HOA raised the constitutionality issue not in its appeal of any issue in the OAH decision, but in its motion to dismiss. The HOA’s authority was simply to cite that a lower court, a trial court that does not set precedent for other cases, had decided the unconstitutionality of DFBLS. (Presumably, the Meritt superior court case, which was a default decision based on an even earlier superior court case, Waugaman, all brought by Carpenter et al. The appellate court accepted this argument.) Furthermore, in the Petition, Gelb pointed out that the issue of constitutionality was never subject to a presentation or discussion of legal arguments (much like the Meritt case) and was an abuse of discretion by the court.

 

It is interesting to note the time frame during which the Carpenter Hazlewood law firm attempted to get an opinion of unconstitutionality – all for the good of its clients, three different HOAs. (See The State of Arizona will not protect buyers of HOA homes! for links to documentation supporting the following). It is interesting to note that in Gelb, the HOA had won the DFBLS case, so why would it want to vacate that decision by filing a constitutionality challenge?

 

On Aug. 4, 2008 Meritt filed a complaint with DFBLS. On Aug. 8, 2008, Gelb filed an appeal of its OAH/DFBLS ruling. However, since nobody, but nobody, including Meritt, the AG, or the legislature responded to defend DFBLS it was decided rather quickly. In Meritt, on Oct. 10th, after the OAH decision on Oct. 3, 2008, Meritt had quit claimed his deed to Big Henge, but that didn’t stop Carpenter Hazlewood from filing an appeal to the superior court on Oct. 23rd. Meritt no longer had standing to sue, and the case was moot. Although Carpenter Hazlewood added John Hernandez as a co-plaintiff in the appeal, Hernandez did not file a complaint with DFBLS — he was not a DFBLS petitioner — only Meritt did, and so Hernandez also had no standing to sue.

 

This raises strong questions of violations of professional conduct rule 42, Candor to the Tribunal, E. R. 3.3. David Dodge, former Chair of the Disciplinary Commission for the Arizona Supreme Court, wrote about “Perjury Pitfalls” in the January 2006 issue of the Arizona attorney: “There are lines that lawyers cannot cross in their endeavor to increase ‘the bottom line,’ and their duty of candor toward the court cannot be sacrificed to please a client.”

 

Other events at DFBLS/OAH provide insights into the attempt by Carpenter Hazlewood to stop OAH adjudication of HOA disputes, where 42% of the complaints were won by the homeowner. On the same day of the ALJ decision, Oct 3rd, Carpenter sought an expansive order — the one he obtained in Meritt that applied the ruling to all HOAs — which was denied on Oct. 10th, the same day Meritt quit claimed his deed.

 

On Jan. 28, 2009, in the superior court appeal, Judge McMurdie ruled DFBLS unconstitutional, and upon request by Carpenter Hazlewood, reaffirmed on Feb. 24, 2009 that his decision applied to all HOAs. Ten days later, on Mar. 6, 2009, Carpenter Hazlewood filed its Motion to Dismiss in Gelb citing the trial court Meritt decision. (It was too late to file an amended complaint). Carpenter could not raise the constitutionality argument at the time the appeal was filed, back on Aug. 8, 2008. The Gelb appeal was necessary in order to obtain the elusive opinion that could serve as precedent in future cases.

 

 _____________

The supreme court has yet to accept the Petition for a decision. If it does and finds in favor of Gelb on the above issue, it will probably not entertain the real issue of the constiutionality of OAH adjudication. Its opinion would vacate the appeallate court holding and DFBLS/OAH would then be required, under law, to hear HOA disputes once again.