AZ HB 2238 seeks clear enforcement of HOA decisions by ALJ

The strength in any law lies in its effective enforcement. The enforcement of OAH decisions by administrative law judges is set forth in the statutes as an appeal to superior court.  Somehow, CAI lawyers seem to have some difficulty in understanding the plain letter of the law.

The chain of authority in the statutes is quite clear.  With respect to ADRE, the agency responsible for dealing with HOA petitions to OAH, ARS 32-2199.02(B) States: The order issued by the administrative law judge is enforceable through contempt of court proceedings and is subject to judicial review as prescribed by section 41-1092.08.”

With respect to Administrative Hearings statutes, the relevant part of ARS 41-1092.08(H) states: A party may appeal a final administrative decision pursuant to title 12, chapter 7, article 6 . . ..”  This link takes us to ARS 12-910 as amended by HB 2238.

Currently, ARS 12-910 subsection E clearly states:

“After reviewing the administrative record and supplementing evidence presented at the evidentiary hearing, the court may affirm, reverse, modify or vacate and remand the agency action. The court shall affirm the agency action unless the court concludes that the agency’s action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion.”

I cannot see how the intent and explicit wording of these statutes would lead a judge to hold,

“Petitioner (homeowner) is seeking to enforce an administrative decision. Pursuant to Ariz. Rev. Stat. Sec. 32-2199.02 the proper venue for a contempt of court hearing (seeking to enforce the administrative decision) is the Administrative Courts, not the Superior Court.” (Whitmer v. Hilton Casitas HOA, CV2016-055080, Maricopa County Superior Court.) The decision by judge is a copy of CAI attorney, Augustus Shaw’s outlandish argument![1]

In short, the Superior Court rejected enforcement as specified in ARS 32-2199.02(B).  In my Advisory of Dec. 3th, Are ALJ orders in AZ enforceable against HOA?, I called for legislation to put an end to the unconscionable abuse of HOA attorneys to weaken homeowner justice in OAH dispute adjudication. Representative Eddie Farnsworth responded with HB 2238, amending ARS 12-910.

ARS 12-910, was amended by striking “contrary to law” above and adding the following to subsection E,

THE COURT SHALL REVERSE, MODIFY OR VACATE AND REMAND THE AGENCY ACTION IF THE COURT DETERMINES THE AGENCY’S ACTION WAS CONTRARY TO LAW.  IN A PROCEEDING TO REVIEW ANY FINAL ADMINISTRATIVE DECISION OF AN AGENCY BROUGHT BY THE REGULATED PARTY AGAINST WHOM THE ADMINISTRATIVE DECISION WAS ENTERED, THE COURT SHALL DECIDE ALL QUESTIONS OF LAW, INCLUDING THE INTERPRETATION OF A CONSTITUTIONAL OR STATUTORY PROVISION OR A RULE ADOPTED BY AN AGENCY, WITHOUT REGARD TO ANY PREVIOUS DETERMINATION THAT MAY HAVE BEEN MADE ON THE QUESTION IN AN ADMINISTRATIVE DECISION. 

NOTWITHSTANDING ANY OTHER LAW, THIS SUBSECTION APPLIES IN ANY ACTION FOR JUDICIAL REVIEW OF ANY AGENCY ACTION THAT IS AUTHORIZED BY LAW.

 

Concerned homeowners must not drop the ball!  This bill must be actively supported throughout the legislative process by emailing the sponsor, Rep. Farnsworth, the chairs of all committees hearing the bill, and to the legislators who will make the final decision on the bill.   Submitting “Request to Speak” comments (not necessary to appear) before any committee hearing is mandatory. Your voice must be heard loud and clear, because you know the Evil Empire and its followers are there in full force.

If you are seeking justice, you must fight for this bill!

 

References

[1] Augustus Shaw was found to be abusive by the Superior Court judge in North Canyon v. Mobbs, CV 2005-015360, Maricopa County Superior Court, 2006. See judge’s May 9, 2006 Minute Entry that includes: “The Court has also reviewed Mr. Shaw’s March 21, 2006 correspondence to Ms. Mobbs in this regard, and finds it to be abusive and inconsistent with the fundamental principles of professionalism sought to be advanced by the Supreme Court and the State Bar. . . Compounding the Court’s concern is Mr. Shaw’s filing of a plainly frivolous motion.”

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Published in: on January 15, 2018 at 11:41 am  Comments (1)  

AZ HB2119 seeks to limit State Bar authority by giving it to the Supreme Court

And so begins Arizona’s legislative session for 2018.   A surprising bill, HB2119 (Rep. Kern, sponsor), that seeks to place the power of attorney regulation directly in the hands of the AZ Supreme Court has made its way into the session.  Homeowner rights advocates and activists must jump on this bill and support it to reign in the abuse by rogue HOA attorneys.

Here is a summary that adds § 12-119.06:

A. TO THE EXTENT PROVIDED BY THE ARIZONA CONSTITUTION, ALL
REGULATORY FUNCTIONS RELATING TO THE PRACTICE OF LAW, INCLUDING THE
REGULATION OF ATTORNEYS IN THIS STATE, ARE WITHIN THE AUTHORITY OF THE SUPREME COURT.

B. . . .THE SUPREME COURT MAY USE MANDATORY ASSESSMENT MONIES ONLY FOR THE FOLLOWING REGULATORY FUNCTIONS FOR ATTORNEYS WHO ARE UNDER THE ACTIVE SUPERVISION OF THE SUPREME COURT:

1. ADMITTING AN ATTORNEY TO THE PRACTICE OF LAW.
2. MAINTAINING ATTORNEY RECORDS.
3. ENFORCING THE ETHICAL RULES THAT GOVERN ATTORNEYS.
4. REGULATING ANY CONTINUING LEGAL EDUCATION MANDATES FOR
ATTORNEYS.
5. MAINTAINING ATTORNEY TRUST ACCOUNT RECORDS.
6. PREVENTING THE UNAUTHORIZED PRACTICE OF LAW.
7. MAINTAINING THE CLIENT PROTECTION FUND, BOARD OF LEGAL
SPECIALIZATION AND THE APPOINTMENT OF CONSERVATORSHIPS TO PROTECT CLIENT INTERESTS.

C. THE STATE BAR OF ARIZONA MAY ESTABLISH, COLLECT AND USE
VOLUNTARY MEMBERSHIP DUES FROM AN ATTORNEY FOR ANY LAWFUL ACTIVITY THAT IS NOT INCLUDED IN SUBSECTION B OF THIS SECTION

The common violations by attorneys come under the AZ Rules of Civil Procedure R.11(b)

(b) Representations to the Court. By signing a pleading, motion, or other document, the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

and the AZ Supreme Court Rules of Professional Conduct, R.42, V, D, E.R. 3.1.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous, which may include a good faith and nonfrivolous argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Please note that R11(c) provides sanctions for a violation of R11(b)

c) Sanctions.
(1) Generally. If a pleading, motion, or other document is signed in violation of this rule, the court–on motion or on its own–may impose on the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee.
Published in: on January 10, 2018 at 5:22 am  Comments (1)  

Donie Vanitzian memorial services

Below is an announcement for Donie’s services. If you go to the link below you can sign an online guest book.

####

In Memory of

Donie Vanitzian

January 1, 1950 – December 28, 2017
Obituary
Donie Vanitzian, age 67, of Los Angeles, CA passed away on Thursday December 28, 2017. Donie was born January 1, 1950.

Donie is survived by.

Donie was preceded in death by.

A funeral service for Donie will be held Wednesday, January 10, 2018 from 10:00 AM to 11:00 AM at Eternal Valley Memorial Park Mortuary, 23287 North Sierra Hwy, Newhall, CA 91321. A committal service will occur Wednesday, January 10, 2018 from 11:00 AM to 11:30 AM, 23287 North Sierra Hwy, Newhall, CA 91321. A burial will occur Wednesday, January 10, 2018 at 11:00 AM.

Fond memories and expressions of sympathy may be shared at www.eternalvalleymortuary.com for the Vanitzian family.

Published in: on January 7, 2018 at 9:46 am  Comments (2)  

I will miss Donie Vanitizian, a long time activist for homeowner rights

 

Much to my dismay I read the following article about the late Donie Vanitizian. 

 

Vanitzian 1990r

Donie Vanitizian Family photo, 1990

“Vanitzian, 67, died Dec. 28 at her house in Del Rey, the victim of an alleged homicide.”

 

I wrote to the author: “She was a much underrated and unrecognized activist fighting  for the homeowners.” 

I had worked with her for over 15 years and together we fought California’s revision to the Davis-Stirling Act.  She was attacked by the Evil Empire a number of times and I came to her aid in defense.

 See Longtime L.A. Times contributor Donie Vanitzian remembered as champion of homeowner rights

vanitzian_law240

She authored this Homeowner’s Guide to Davis-Stirling, published by the legal treatise publisher, Thompson-West

“For more than 16 years in her Sunday Los Angeles Times column, Donie Vanitzian helped frazzled homeowners navigate the minefield that can be living within a homeowners association.

 “The columns often focused on alleged wrongdoing by board members, management companies and other people in positions of power.

“A pugnacious advocate for homeowners, she would contact legislators on HOA-related bills and even respond to readers seeking guidance, regardless of whether she wrote about their experiences in print, one colleague said.

“She had quite the following,” said her sister Alysia Vanitzian. “She would get tons of email and mail from people living in HOAs wanting to send her gifts and money, because she was so helpful.”

 

 

Published in: on January 6, 2018 at 9:09 am  Comments (6)  

HOA-Land &The Personality Cult of Donald Trump

As presented on @MorningJoe, there is a Donald Trump Personality Cult and the cult followers are, sadly and for the most part, members of the Republican Party.  Just watch the numerous, staged gatherings of faithful worship and extoling Trump as the Great Leader who has achieved outstanding accomplishments. Watch Trump basking in the sycophants’ praise, while continuing in his self-centered, distortion and misrepresentation – some call them outright lies — of the facts.

trump cult1

trump cult2

Finkelblog.

Reminiscent of Mussolini, Hitler, Stalin, Mao Zedong (Mao Tse-tung), Putin, and North Korea’s Kim Jong-un.

stalin  Mao

mussolini

 

More reading . . .

The Trump authoritarian cult – The Washington Post

The dangerous cult of Donald Trump – LA Times

Trump’s Cult of Secrecy Is Undermining Our Democracy – Newsweek

 

The New America of HOA-Land

Don’t look to the parties to the Constitutional contract, the states, for help.  They have also abandoned the constitution when it comes to promoting, supporting and defending un-American, authoritarian private governments operating outside the Constitution, commonly known as HOAs.  Read more on this secession from the Constitution,

Homeowners Associations: the Second American Experiment

HOA Common Sense, No. 1: The New America of HOA-Land

HOAs as a “failed experiment”?

Published in: on December 22, 2017 at 11:12 am  Comments (1)