Tag: supreme court

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

The Arizona bill, SB 1148 passed out of committee on March 1st, to restore the Office of Administrative Hearings adjudication of HOA disputes appears to be stalled, once again as in 2006, by the House Rules Committee.  Once more it is not on the House Rules agenda.  Failure to address the objections of the appellate court opinion in Gelb will heighten the likelihood that the Arizona Supreme Court will now have to decide the issue, and other matters raised in my amicus curiae brief. See Gelb v. DFBLS, CV 10-0371-PR.

The supreme court has yet to decide to hear this important case, waiting, as expected, to see if the Legislature would pass SB 1148 to render the constitutionality issue moot – no longer a controversy.  If not handled by the Legislature, then the Court cannot avoid addressing the following plea in my brief:

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

In deciding the constitutionality issue, the Court will need to address the real issue at hand, the separation of powers issue, where the Legislature remained silent and did not file a defense of their HOA due process statute. However,  the Legislature felt compelled to intervene in the controversial DOJ challenge to the immigration law statute, SB 1070.  Is this selective support for certain laws and parts of the Constitution over others? 

Senate President Pearce, author of SB 1070, said, “I want to make sure everyone knows, we, in the Senate, will govern from the bottom up, not from the top down” and I believe in the rule of law, I’ve always believed in the rule of law, We’are a nation of laws.”  Yet it appears that top-down, special interest “push” pressures still prevail with respect to HOAs (See prior commentaries with respect to HB 2441).

It is a well established doctrine that the legitimacy of a democratic government  rests on fair and just laws.

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

 It would seem that the best course of action is to quickly pass SB 1148

My long awaited debate with the CAI (Community Associations Institute) lawyers on substantive issues relating to HOAs has finally come about. Well, almost. The CAI member law firm and attorney for the HOA responded to the amicus brief submitted to the Arizona Supreme Court by this homeowner rights advocate in Gelb v. DFBLS, CV 10-0371-PR. In short, two issues are addressed: the constitutionality challenge itself, and the alleged political bias by the appellate court in its decision holding the statute unconstitutional.

First, the Response simple reiterates its Response to the Petition for Review, maintaining that the issue was already settled by the appellate court.

Second, as to the arguments advanced in the amicus brief that the appellate court allowed political considerations to influence its opinion, the Amicus, that’s me, is painted as a conspiracy believer. “The amicus curiae closes his brief with a conspiracy theory about the involvement of undersigned counsel in this case and other cases in which the constitutionality of the statute was challenged.” The CAI member attorney defends his rush to file this appeal, which occurred as a result of the Phoenix Townhouse v. AZ OAH superior court default decision, with “legal counsel had the obligation to raise every issue available that could result in prevailing for his client in the pending case.” However, this sidesteps the question raised in the default Phoenix Townhouse case, still unanswered by the attorney, as to the legal standing of the real person in interest, Ron Meritt, who had left the HOA prior to the constitutionality challenge. Smith coud not risk opening this door again.

In unsupportable conclusions, the attorney, Jason Smith, charges me with suggesting that his constitutionality challenge was made to intimidate homeowners from filing suit. That does not follow logically. The challenge, as stated in the brief, was that the HOA attorneys weren’t looking too good and had to end the success of OAH adjudication. Further far-fetched charges made by attorney Smith include that I “liken undersigned counsel and his firm to henchmen for authoritarian regimes suppressing the rights of homeowners.” The record before the Arizona Legislature over the past 10 years and statements made by the firm are well documented in this respect. Smith adds, “The conspiratorial hyperbole notwithstanding”, we were just doing our job for our client.

Furthermore, in an unbelievable statement echoing that of the CAI amicus brief before the NJ appellate court in Twin Rivers HOA free speech case, Smith firmly states that, “It is clear from the that the amicus curiae simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.” Let me rephrase that statement:

The law has never supported the proposition that homeowners in HOAs are entitled to constitutional protections.

A copy of CAI’s Response Brief with its above in-your-face statement of the law should be sent to every state attorney general, every state legislature, every state real estate department, and every state’s consumer watchdog and consumer protection agency. This declaration by Smith, p. 8, should be highlighted as evidence of misrepresentation and fraud in the sale of planned communities and condos, and homebuyer protections demanded.

Finally, in Smith’s gratuitously offered proposed solution, as all those of us who have attempted to obtain justice from our state legislatures well know, and as CAI — the national lobbying organization supporting the HOA establishment — and attorney Smith well know, the legislatures have not accepted the fact that the HOA laws are unconstitutional special laws for private organizations, as these laws cannot be supported by a necessary and compelling government interest. This level of judicial scrutiny is necessary to deny due process and equal application of the law protections to the residents in de facto, yet unrecognized HOA private governments.

Sources:

Staropoli amicus curiae brief

CAI/Smith amicus response

CAI Twin Rivers amicus curiae brief, p. 19.