The Arizona Superior Court special action appeal of an administrative law judge decision upheld, and affirmed last week, the order that the administrative hearing adjudication of HOA disputes was unconstitutional. This affirmation was made one day before the time limit for a response set by the Superior Court Judge, and on the same day a letter introducing new facts in the case was received by the judge. The facts showed that there were no real parties in interest prior to the filing of the appeal and that the case was “fictitious.” There is no acknowledgement of the letter nor a response to these important facts by Judge McMurdie. This is a gross miscarriage of justice!
This case, LC2008-000740 Maricopa Superior Court (Merrit), reflects an Arizona public policy that permits the denial of the equal protection of the laws in favor of private party adjudication of HOA disputes. It appears that the Attorney General, the Legislature, and the Judiciary itself see no problem with private party adjudication of disputes that can impose financial harm on homeowners, but will not allow an independent government agency to adjudicate these disputes. This turns the Constitution on its head! This is but a taste of what to expect living in the HOA-lands in the New America, in which not only the functions of government itself are privatized, but the judicial functions as well. What, then, is the purpose of public government and the Constitution?
This total disregard of my letter follows a flat denial, without explanation, of my February 11, 2009 Motion to Intervene, which was an abuse of discretion by Judge McMurdie. Perhaps it was because I had included the Attorney General’s defense of the constitutionality of the statute in a prior case (which would have caused a trial and an embarrassment to the AG), LC2007-00598 (Waugaman), given that the AG and Legislature now failed to defend the statute in this case. Why? Maybe it was because I had made strong arguments (in my required Answer) against the CAI-HOA attorney argument that an agency had to possess regulatory functions. Such a requirement is not found to be a mandatory criteria in the Bennett four-fold test that was used in the Cactus-Wren and Hancock cases. These cases served as the basis of Judge Downey’s order in Waugaman, whose order was included as part of the Merrit complaint.
You be the judge of the events and decisions in this effort to attain a fair trial adjudication of HOA disputes. How much has politics come into play? The relevant court filings are available at the links listed below. A Statement of Facts summary and Timeline can be found under the “summary of events” link below.
It is the policy of Arizona to favor the HOA industry with special laws and privileges that deny its citizens “fair trial” due process and the equal application of the law. Perhaps in these times of financial hardship on the state, and on developers, homebuyers should speak out with their pocketbooks and buy homes at substantial discounts that are not in HOAs. Homebuyers, avoid the mismanagement of HOAs; the blind adherence to arbitrary rules by “political machine” ruling boards; the divisiveness caused by the HOA attorneys who insist on enforcement, with no compassion; the lack of support and protection from your public government; and without having to be married to your neighbors who will not join in your just fight for fair treatment against board abuse. Ask yourself, “Who needs it?”