Understanding the message

My posts — commentaries, annotations, reviews — contain supporting materials that include citations, quotes, analysis of lawsuits, links, and emails and communications of the parties being discussed. Readers should not ignore the endnotes/footnotes that contain these references that are included to better understand my message.

“To succeed you must accept the world as it is and rise above it“

Publications on HOA constitutionality and legal structure

Peter F. Drucker was an internationally re-nowned management consultant in the 50s and author of the management “bible,” The Practice of Management. “A classic since its publication in 1954, The Practice of Management was the first book to look at management as a whole and being a manager as a separate responsibility.” Bob Woodward you should know.  View my publications (none more than $6.00) here:

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AZ 1984 SC opinion ignored living constitution

The Arizona Supreme Court opinion in Planned Parenthood AZ v. Mayes (1984 law) is consistent with their predominant belief in Originalism. These Justices did not accept the view that the Constitution must adapt to society as exists today and be a Living  Constitution. This controversial issue was not discussed in its opinion.

Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism. Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.

Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written and not merely ignore it or reinterpret it to their liking.

Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.

The AZ opinion is a sharp contrast to recent US Supreme Court opinions over the past years:

• Brown v. Board of Education (society has changed and separate but equal is unsupported; 1954)
• Roe v. Wade, 1973, overturned 2022. (women have privacy rights to abortion)
• Affordable Care Act (“Fans of judicial inventiveness will applaud once again,”2010)
• Citizens United (corporation freedom of speech  and can fund campaigns; 2010)
• Hobby Lobby (separation state and religious beliefs; contraceptives, 2014)

Understanding how the courts form opinions; 1864 abortion decision

The surprising opinion by the AZ Supreme Court in the 1864 abortion law[1] is an excellent learning tool for HOA advocates on how opinions are reached. The Court went to length to explain the affected laws and how the courts, in general,  proceed to interpret the statutes upon which a case is based.

Here are some key take-away reasonings (emphasis added).

• [T]he question presented is . . . whether the later statutes “repeal or otherwise limit” the earlier statute.
• Clear and unequivocal language determines a statute’s meaning, reading each word, phrase, clause, and sentence in such a way to ensure no part of the statute is void or trivial.
• This analytical approach is premised on foundational trust in legislative competency, and this Court “presume[s] that the legislature knows the existing laws when it enacts or modifies a statute.”
• If the statutory language is ambiguous . . . we may use alternative methods of statutory construction, including examining the rule’s historical background, its spirit and purpose, and the effects and consequences of competing interpretations.
• “A statute is not ambiguous merely because the parties disagree about its meaning,” it is ambiguous if the “meaning is not evident after examining the statute’s text as a whole or considering statutes relating to the same subject or general purpose.”

In my view the above “rules” allows the court to defend its opinion, sometimes evident that it was previously decided  no matter what.  “We will give him a fair trial before we hang him.”

As to the opinion itself, the Justices recite a series of legislative statutes and amendments on abortion rights over the years. In consideration of the above, please be patient and see what a court may have to deal with.

• The federal 1864 statute applied to the Arizona Territory (1901) and adopted by the State of Arizona in 1913. In 1928 the AZ Legislature adopted statutes on abortion as a crime.  ARS §§13-211 to – 213.
• In 1971 with Planned parent v. Marks the appellate court remanded back to the trial court that held the statutes were unconstitutional (1973). On appeal the statutes were considered constitutional. Subsequently, ROE was overturned.
• The AZ statute was inconsistent with ROE, making the AZ statute unconstitutional once again and did not allow enforcement of the AZ law ARS 13-211. See Nelson). The Legislature did not repeal  ARS 13-211.
• In 1977 the statute was recodified as §13-3603.
• In June 2022, the Supreme Court overturned Roe, thereby eliminating the federal constitutional right to abortion and returning “the eliminating the federal constitutional right to abortion. (see Dobbs).
• FINALLY, in 1973 we have the runner up to today’s opinion when AG Brnovich and Planned parenthood fought over what law applies. The Court held that the 1864 law was never nullified nor repealed by the AZ statutes.

• The Court concluded: “We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603 . . . .”

Note 1. Planned Parenthood AZ v. Mayes, as AZ AG, No. CV-23-0005-PR (April 9, 2024).

HOA-Land Organic Laws

Organic Law is “the set of foundational laws or regulations, like those in a constitution or charter, which establish the essential framework of a government.” It is the fundamental basis of a government.

The U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (See US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi).

In contrast, The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA-Land. Together with their derivatives, as applied to HOA Declarations, they set the HOA’s  political tone and governing policies, which clearly rejects the US Constitution as the law of the land.

National defender of HOA-Land legal structure, Community Associations Institute, CAI, had this to say in its amicus curiae to the NJ appellate court in Twin Rivers (2006).

“In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm, and serve as the preferred mechanism for decision-making, rather than members effectuating change through the democratic process. [p. 19].”

Law review article criticizes HOA public policy

In her 44-page OK Univ. Law Review “Note” (2022) the author, Saige Culbertson, concentrates on the questions of agency relationships and duty of care. However, in order to discuss the question of agency relationships, Culbertson addressed many of the issues still causing problems in HOA-Land including the status of HOAs as quasi-governments, the validity of the CC&Rs “contract,” and the reality of maintaining property values.

With respect to agreeing to be bound, the author maintains in regard to the individual homeowner subject to the CC&Rs,  that

• “HOAs use these contracts as a basis for their decision making because courts often presume the homeowners have a full understanding of their HOA’s obligations, because they have the duty to examine their contract for real property. The typical HOA contract is overly generalized and broad.
• “When buying a home, a homeowner does not often have the option to not join. Homeowners also have little-to-no choice of which actions the HOA may take on their behalf, or, crucially, any actions taken by the HOA for any purpose.  
• “However, the lack of mutual assent is constant throughout the relationship with the HOA. At the beginning, the homeowner might not have agreed to a relationship with the HOA, and those who have agreed might not have a full understanding of the rules of the HOA.
• “[S]ome courts and scholars argue that HOA contracts are a form of adhesion contracts. Adhesion contracts are exclusively pre-determined by a single party and are presented as “take it or leave it,” while the non-drafting party has no room to negotiate.”

With respect maintaining property values, Culbertson is concerned about “The Fictional Purpose of a Homeowners’ Association,”

• “The Community Association Institute recently reported 71% of individuals believed their community association rules ‘protect and enhance property values.’ While this belief may have been true in 2005,  more recent research indicates otherwise. 
• “[A] study found that “[p]roperties located in HOAs do not appreciate faster, on average, than properties not located in any type of neighborhood government”

 and cites this study by Robertson,

• “[A] 2021 study conducted by former Yale Professor Leon S. Robertson found that “[c]urrent sales price[s] [are] related to property characteristics and local market conditions[,]” and that “sales prices do not reflect the efficacy of homeowners associations to protect property values.
• “Robertson remarked that “[s]tate and local laws that sanction homeowners associations and allow their coercive practices based on the premise of property value preservation are ill founded.”

With respect to quasi or local government, the author favors making “HOAs part of local government, founded in democratic ideals, and with regulation by the state or municipality,”

• “The nature and purpose of the HOA are so closely linked to that of local government that . . . clearly give rise to a special sense of responsibility . . . . This special responsibility is manifested in the . . . requirements of due process, equal protection, and fair dealing. The severity of the risks associated with the substantial overreach by HOAs is further shown by actions depriving individuals of their basic rights.
• “[U]pon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a “mini-government,” the association provides to its members . . . . [citing Cohen v. Kite Hill Cmty. Ass’n, 142 Cal. App. 3d 642].
• “The lack of checks and balances on HOA actions is a national problem and homeowners are often left with no remedy for violations of their rights. The need for regulation of HOA activities, and further federal protections for individuals, is especially apparent . . . .
• “[H]omeowners should urge their local government to increase regulations on HOAs to protect their fundamental rights as Americans. States should therefore pass legislation to make HOAs part of local government, founded in democratic ideals, and with regulation by the state or municipality.”

Source: OK Univ. Law Review (PDF download).

CAI amicus brief: candor to the tribunal

Still think CAI is on your side and can be trusted to act in good faith?  Here’s the latest CAI propaganda bordering on a violation of the Rules of the AZ Supreme Court, R42, E.R. 3.3, (found in Rules in every state):

“Candor Toward the Tribunal: (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;”

(3) offer evidence that the lawyer knows to be false. 

(b) A lawyer who represents a client . . .  and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

In CAI’s amicus brief to the AZ Supreme Court in CAO v. PFP Dorsey (Case No: CV-22-0228-PR, 2024), we see repeated half-truths about who CAI represents and what are its purpose and functions.  Some excerpts from “Interest of CAI as Amicus Curiae” (emphasis added),

• is an international organization dedicated to providing information, education, resources and advocacy for community association leaders, members
• CAI’s more than 43,000 members include homeowners, board members
• serving more than 74.1 million homeowners
• CAI is representing not only itself, but also its tens of thousands of members on this important issue.

CAI misrepresents its position and status.  It’s a miniscule organization and no way close to the estimated AARP’s 66% of 55 plus persons. The shortcomings include:

• Failure to state it’s a business trade nonprofit, 501(c)6 and not an educational (c)3; (everybody knows does not count)
• As a business trade entity, it is not allowed to have HOAs, the consumer of CAI’s member services, as members;
• Not informing the court that “individual volunteers” constitute a minority class of membership, and
• Failure to inform that the Management of CAI is controlled by a Board of Trustees in which its “volunteers” members are only 13% of the Board that is dominated by the management class;
• ·         a 15-member Trustee Board supported by 2 groups of 12 representatives and the Homeowners Leadership Council  of only 6 representatives;
• The current Trustees Board has a president from Dubai and a president-elect from the US, both managers; 6 more managers; 2 “HOA managers,” 2 lawyers and 3 others. (See Board of Trustees).
• Failure to inform that no HOA board of directors, to my knowledge, has granted CAI the right to represent or speak for the HOA before government tribunals;
• ·         Exaggerating its scope of influence and alleged representations when its total membership is less than 36% of HOAs or persons living in an HOA.  (Based on 2007 & 2012 data, See HOA homeowner membership in CAI is a mere 36%; Who controls CAI and its 50 state HOA lobbying committees?)
• ·         As of this writing, CAI claims 45,000 members; 75.5 million residents, and 365,000 HOAs. With an estimated population of some 331 million people, 23% live in an HOA  — .06% of HOA residents are CAI members!

Would you consider the brief being honest and forthwith to the Court?