Tag: legislature

HOA disputes: judicial activism with a political agenda

Our judicial system rebounds with mottos, slogans, quotes end even chiselings on building facades attesting to the goal of “justice for all” or “equal justice under the law.” But we must ask whether justice was served in the Arizona ruling in Gelb v. DFBLS[1] that struck down an independent tribunal’s adjudication of HOA disputes?  We must ask:  Was the ruling judicial activism in support of a political agenda?

In the underlying Hancock case, the court held,

 The separation of powers doctrine does not forbid all blending of powers, but only is intended to keep one branch of government from exercising the whole power on another branch . . . Courts today also recognize that absolute independence of the branches of government and complete separation of powers is impracticable. . . .We also believe public policy favors such a blending of powers here.

With the above understanding, we must ask how the Gelb court arrived at its opinion that,  “In accordance with well-established legal authority, the HOA has overcome the presumption of constitutionality . . . “

 Read the full Commentary at HOA judicial activism.

 

HOA due process protections: Arizona OAH vs. NV Ombudsman

 

The HOA statistics provided by the Nevada Ombudsman Report for 2010 stands in sharp contrast to the success of the terminated Arizona OAH adjudication of HOA disputes.  It shows 55% of the HOA complaints were resolved, while the Intervention Affidavit (complaint) Report reveals that a mere 4.5% had gone on to an ALJ for adjudication. The Ombudsman Report also shows that of the indicated 1,260 complaints, only 25% made it to a conference hearing, of which 55% were resolved. In total, about 14% of the complaints were resolved. (It should be noted that the number of complaints indicated on the two reports reveal a marked discrepancy of 1,260 on one and 493, or 512, on the other).

 

Some people would point to these numbers and say, “See, we told you so. HOAs are 95% good, but we do have these malcontents and disgruntled people.” Others would say that the Ombudsman office operates like State Bars where very few complaints make it to a judicial hearing, and only after being screened by their brethren.

 

Other states with an ombudsman office haven’t fared any better. In California, the Ombudsman can be vaguely discerned through the bureaucratic mist, while in Florida the outspoken homeowner rights advocate group, CyberCitzens for Justice, repeatedly criticizes the handling, or lack of handling, by Florida’s DBPR “ombudsman” agency. Both have been in existence for over four years.

 

In Arizona, after a brief 2 plus years, its agency that handled HOA disputes by means of the independent Office of Administrative Hearings (OAH) was declared unconstitutional[1]. In contrast to the reported Nevada 4.5% heard by an ALJ, just about 80% of the complaints were heard by an ALJ at Arizona’s OAH. In contrast to these other large states, an ALJ at OAH heard some 66 cases of which 42% were won, for the vast majority, by the Pro Per homeowner against the HOA and its attorney.

 

No wonder the CAI member law firm made repeated attempts to silence OAH[2], and after 3 shots at the apple it won in Gelb v. DFBLS, CA-CV 09-0744 (Ariz. App. Div. 1, Oct. 28, 2010). The well documented OAH adjudication had revealed the stark reality of HOA abuse, and the denial of the equal protection of the law under the corrupt HOA hearing process where the accusers judged the accused. (To say, as some have, that the homeowner openly and with full knowledge accepted this condition is incredulous!) In the two years prior to the passing of the bill granting DFBLS/OAH power to adjudicate HOA disputes, the Arizona Legislature had failed to pass bills that would ease the burden on homeowners going before the Justice of the Peace courts. It rationale was that it would create an uncertain burden on the JP courts because of a potential tidal wave outcry for justice.

 

The adjudication of HOA disputes by the Office of Administrative Hearings in Arizona was a landmark advance in due process protections for homeowners and should be adopted in all other states. It’s powers were limited and the parties had rights to appeal to the civil courts. It did not usurp the role of the judiciary nor violate the separation of powers doctrine, but assisted the civil courts by providing justice within reasonable costs for the individual homeowner. Case law contains many rulings that such benefits and purposes do not violate the separation of powers doctrine, and many such instances exist today. (It should be noted that all OAH petitions were brought by the homeowner).

 

The Arizona Legislature cannot pick and choose what portions of the Constitution it wishes to enforce and which it wishes to ignore. In order for it to acquire obedience in conscience from the people, its legitimacy rests on valid and just laws. Due process protections for HOA residents must be restored by means of an “acceptable to the courts” revision of the applicable statutes.

Notes

1. 
Independent tribunal adjudication of HOA disputes in AZ held unconstitutional.

2.  The State of Arizona will not protect buyers of HOA homes!

Is America a nation under the rule of law, or of men?

This Monday, November 29th, the Supreme Court is expected to decide whether or not it will accept the Petition on the issue of President Obama’s status as a citizen and to have validity qualified as a President of the US. (Kerchner, No. 10-446)i. The Petitioners make several arguments equally applicable to HOA principalities with respect to the failure of the courts to protect the citizens of this country under its constitutional duties and obligations. HOAs are allowed to supersede and circumvent the supreme law of the land and are treated as principalities independent of and not subject to the Constitution.

Is the Constitution a meaningful document, or just a piece of paper that only serves as a basis to debate exceptions to its application? In other commentaries, I have written that America is no longer under the rule of law, but of men, and those living in HOAs have suffered as a result of the deterioration of this once honorable and noble standard and ideal. The application of the Constitution, as required of all public governmental entities, to de facto private governments is not an issue to state legislatures and those public interest organizations. Such actions relegate the Constitution to a meaningless piece of paper, and men now rule the country following their beliefs, principles and self-interests as evident in many third-world countries.

In Twin Rivers, the NJ Supreme Court rejected constitutional protections of free speech for homeowners in HOAs in favor of the “business judgment rule.” In Arizona, the appellate court found no problem in preferring the corrupt HOA due process “hearings” over independent tribunals by an administrative hearings agency. In contrast, the Supreme Court opinion, in the Kelo eminent domain case, redefined “public use” to mean “public purpose”, and demonstrated a pro-active court and the influence of men, not law, on the American people. All such questions raise the question of, “Where stands the Constitution?”

The Kerchner Petition addressed the role of the judiciary in upholding the balance of powers under the Constitution by not deferring to the legislature to solve all issues. Kerchner argues for the courts to standby their obligations to maintain that balance of powers,

The constitutional issue also cannot be decided by the political parties and a voting majority. Our nation is ultimately guided by the Constitution and the rule of law, not by majority rule. Allowing the political parties and the voting majorities to decide constitutional issues would be tantamount to amending the Constitution without going through the amendment process prescribed by Article V of the Constitution and abandoning the basic principles of republican government. p.29.

The courts, after rejecting the application of constitutional protections, as in the above-mentioned cases, offered consolation to homeowners by informing them that the legislature can “correct” the laws. (As homeowners have been told by numerous state attorneys generals who have broad powers to act, but refuse to do so). How can the Congress or a legislature correct a law when that law has been has been relegated secondary status in accordance with the court’s opinion of what’s good for society? As well said in Kerchner above, majority vote cannot amend the Constitution, and to allow majority vote to override the Constitution makes it meaningless. The supreme law of the land must control, as explicitly stated in the Constitution, and not the rule of men. Get a new Supreme Court Justice and we can get new constitutional laws. Kerchner adds,

 

But what happens when Congress also refuses to perform its constitutional duty . . . ? Surely the Constitution would not leave someone like the petitioners without any remedy to protect the same rights which the Declaration of Independence and the Constitution recognize as their unalienable rights to life, liberty, and property. (See Marbury v. Madison, “where there is a right there is a remedy”).

. . . .

If neither Congress nor the Executive branches of government will give the petitioners that protection to which the Constitution entitles them, they should have access to the courts to be able to protect and vindicate their own rights to that protection. This right to access to the courts is more critical when both the executive and legislature are acting in concert to deprive the petitioners of their right to this protection. p. 30.

This is the sad state of affairs in America today, where the Constitution has been ignored by the courts and the legislatures in favor of private de facto HOA principalities that owe little allegiance or obedience to our system of government. Where public government in total approves of the homeowners association with its repudiation of our American system of government. Where men rule according to their particular beliefs, and those beliefs often hold the Constitution secondary to their personal agendas.

 

i  Kerchner v. Obama, II, No. 10-446, Petition for a Writ of Certiorari, Sept. 30, 2010.

Who prosecutes on behalf of homeowners in HOAs?

Qui Pro Domina Justitia Sequitur

(‘who prosecutes on behalf of Lady Justice?’)

 

 

Attorney Penny Koepke appeared on the Nov. 19th Arizona KPHO TV segment, “HOA Disputes,” as the demure and soft spoken attorney from the Ekmark & Ekmark law firm, and spoke in favor of the demise of due process protections for homeowners. (See http://www.kpho.com/local-video/index.html and select “HOA Disputes”). The court case discussed in this news segment was Gelb v. DFBLS (in re Sedona Casa Contenta HOA).

 

Please note that the Carpenter Hazlewood law firm, which pursued the constitutionality challenge to the state agency adjudication of HOA disputes in three cases leading up to the Gelb decision, does not appear in the KPHO segment. Partners Carpenter and Hazlewood, as well as Curtis Ekmark, are all members of the national HOA lobbying trade organization (not an educational 501(c)3 organization), Community Associations Institute, CAI. Ms. Koepke does not admit to being a member, but frequently speaks and lectures at seminars and conferences for CAI.

 

In 2004, Ms Koepke also appeared before the Arizona House FMPR committee hearing on the HOA foreclosure reform bill, HB 2402. She addressed the committee and responded to questions by the bill’s sponsor, Rep. Farnsworth, for about 21 minutes. (The audio CD is available from the Clerk’s office archives for a small fee).

 

Following this hearing, I produced a segment on HB2402 from the House audio CD. In her testimony Ms Koepke had stated that she was an ethical person of integrity who foreclosed only as a last resort upon the instructions of her HOA clients. However, she had a problem with making use of alternative methods of collecting debts as are available to all lien holder in other arenas, and saw no moral issue with completely stripping the homeowner of all his equity for a few pieces of silver. Her justification was that they were “scofflaws” who needed to be punished to deter future untimely payments. In the complete audio, you will hear the committee Chair informing Ms Koepke that such actions were “unconscionable.” I added a commentary as an addendum, which presented a few background cases and incidents in which Ms Koepke was involved. This short commentary video can be found at Foreclosures.

 

It should be apparent by now, with respect to foreclosures and due process protections in general, that a homeowner can get a better deal from the IRS than from his HOA backed by attorneys. There is no requirement in the HOA “contract” — the CC&Rs “constitution” — requiring the HOA to be fair, just, compassionate, conciliatory or charitable. Remember: “It’s the contract, stupid,” and you are not protected as one would think under state laws and constitutions.

Independent tribunal adjudication of HOA disputes in AZ held unconstitutional

An Arizona appellate court declared that the independent tribunal adjudication of HOA disputes by the Off. of Admin. Hearings was unconstitutional. After four attempts, the Arizona CAI law firm of Carpenter Hazlewood Delgado & Wood had finally obtained its long sought victory. (See Gelb v. Casa Contenta HOA, CA-CV 09-0744, Ariz. App. Div. 1, Oct. 28, 2010).

If you followed my time line in the Merrit case (2008), Carpenter was desperately seeking to get OAH declared unconstitutional.  It started with Brown v, Terravita, but no decision was made.  Next followed Waugaman where Judge Downie decided it was unconstitutional, but applied the decision only to the HOA at issue.  Along came Merrit v. Phoenix Townhouses and a decision was quickly made to take the case up on the constitutionality question, wherein Carpenter sought the Downie ruling to be applied to ALL HOAs.  However, Merrit got out of the HOA before the appeal was made, making it a moot question without a concrete issue. However, the decision was not challenged except by me, and I was snubbed and denied any further filings in the case. (See The State of Arizona will not protect buyers of HOA homes! for the case study and court filings.)

At the same time as Merrit, perhaps Carpenter realizing this serious problem of standing to sue, raises the constitutionality question in Gelb at the superior court trial level (see ¶ 6) – just in case.  This was in Aug 2008, at the time Merrit was going on.  There was really nothing new in the Gelb decision as it reads from both Cactus Wren and Hancock, like with Downie in Waugaman, except the slap at the legislature trying to get around the courts that was made by Downie is missing.

 Question:    The HOA had won at the Office of Administrative Hearings.  Gelb was contesting the decision.  Why on earth would the HOA’s attorney challenge the constitutionality of the decision, which upon a win, would invalidate the OAH decision in favor of his client, the HOA????  Who was Carpenter working for????