“The tyranny of the legislature is really the danger most to be feared.” Thomas Jefferson
HOA mirror omnibus bills, SB 1482 and HB 2695, — while there are some concessions to those concerned with criminal activities — are materially the trice defeated HB 1454/HB 2371 bills of last session. They leave statutes declared unconstitutional on the ARS books regardless of pass or not-pass. The public is thereby being deceived as to the validity of ARS, which continues to report unconstitutional statutes.
The log-rolling, something for every HOA special interest, aka HOA stakeholder, includes a separation of powers issue with respect to amendments to the Supreme Court UPL rules, Rule 31. Petition for rule change, R13-0041, to allow exceptions for HOA manager representation of HOAs was withdrawn last year upon the unconstitutionality decision. The 2011 request, R11-0001, which contained the same exception for HOA manager representation, was rejected by the Supreme Court.
The cooperation with the HOA stakeholders, the 800-pound gorilla, by the bills’ sponsors and the passage by their committees is iconic of the tyranny of the legislature under the extreme dominance of HOA special interests.
HOA omnibus SB 1454/HB 2371 redux
The Arizona Legislature would be making a strong statement this 2014 session: no one challenges the Legislature, itself, and a legislator, of intentionally violating the Arizona Constitution — and wins in court. There are two mirror bills, SB 1482, Senator Griffin again, and HB 2695, Representative Ugenti again, that are a resurrected HB2371 from the last session. HB 2371 was a bill that twice failed, but was snuck into and unconstitutionally attached to SB1454 in the closing hours of last year’s session — an omnibus bill having something for all special interest HOA stakeholders.
Rep. Ugenti’s opening statement on HB 2371, before Senator Griffin’s committee, stated that she combined all those bills,
Working through a stakeholder process and allowing the stakeholder process to filter the proposed legislation . . . representing a consensus from the AZ realtors, and AACM [AZ Association of Community Managers, the beneficiary of this bill]. . . . I do feel responsible to the many stakeholders and representatives in the bill.” [Homeowners were not included among the “stakeholders.”]
No choice to repeal statutes found unconstitutional
These statutes were declared unconstitutional by agreement with the AG, representing the Legislature, and an order by the court accepting the settlement agreement. However, the Arizona Revised Statutes (ARS) still shows these statutes as if they were valid and enforceable laws, which is deceptive to the public accessing the official Legislature’s website, ALIS. There are no annotations to advise the public otherwise.
The repeal of these unconstitutional statutes is conditioned upon bill approval. A failure to pass both bills will still leave these statutes on the books. There is no stand-alone bill that repeals these unconstitutional statutes as would be expected by a legitimate legislature acting with integrity as representatives of the people, and not as representatives of the special interests. Apparently the defiant eight-hundred pound gorilla, the special interest HOA stakeholders (CAI, AAR, AACM and AHBA) has flexed its muscle, and the sponsor has reacted accordingly.
Grant of unconscionable special powers to HOA managers
As to the content of the amendments, it is inexcusable that these bills would bless willful violations of UPL as uncovered by the Arizona Supreme Court’s action against AAM, LLC, a CAI and AACM member HOA management firm. Among its findings of numerous UPL violations, the court added (my emphasis), “The Board would add AAM also should have known better than to let its certified legal document preparer employees perform in a representation function in violation of Rule 31 and ACJA 7-208(1).” It seems that AACM forgot about the rejection in 2011 of a request for HOA manager representation, R11-0001. Its conduct in 2012 can be seen as a direct flaunting of the laws of the State of Arizona.
The bill offers no justification for the special treatment of HOA managers to allow them to represent HOAs without any licensing or training in spite of the numerous violations revealed by the AAM findings. The Court action followed upon the March 2012 State Bar UPL Opinion, 12-01, in which six questions pertaining to HOA manager conduct were addressed. Question 6: “May CAM [community association manager] personnel negotiate legal matters on behalf of the Association with Association members?” The answer: NO! Not even licensed and educated Certified Legal Document Preparers can!
Machiavelli wrote: “Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.” Unlike SB 1062 where the public is genuinely divided, these bills are the special agendas of the HOA stakeholders alone, and not of the people. Because the sponsors chose an omnibus approach to log-rolling yes-votes for acceptance, rather than to allow free choice on each issue, these bills must be defeated.
I sincerely hope that the Arizona Legislature finally stands up to the 800-pound gorilla, the HOA stakeholders, and does the right thing: not allowing these bills to become law and to repeal the unconstitutional statutes of Ch. 254 (2013).
 CAI – Community Associations Institute; AAR – Arizona Association of Realtors; AACM – Arizona Association of Community Managers; AHBA – Arizona Home Builders Association.