"After notice and an opportunity to be heard"


Arizona statutes ARS 33-1803 and 33-1247 state that “after notice and an opportunity to be heard” the HOA/condo board may impose monetary penalties. This wording, in itself, is insufficient to pass the Supreme Court’s opinion on due process requirements.

In the landmark case, Goldberg v. Kelly, 397 U.S. 254 (1970), the court had to rule on whether or not NYC welfare benefits adjudicated by a NYC agency met the criteria of due process protections. A welfare recipient was entitled, under the NY statutes, to a “fair hearing”, meaning an opportunity to appear personally before an independent tribunal, which was equivalent to Arizona’s Off. of Admin. Hearings, offer oral evidence, confront and cross-examine witnesses before judgment on his welfare status.

To provide a lesser protection of due process rights, the government must show an overwhelming justification of its interests. Here, with HOAs, we never get an answer to the question as to what the state’s overwhelming interest in allowing a private organization to deprive people of their property interests, as well as money. Here, the government is permitting private organizations to adhere to a lower standard than what the Constitution imposes on the government itself.

This is the basis of charges of the unequal protection of the laws, of governmental state actions involving the active support, cooperation with and coercion to accept HOAs; of the entwinement of the government in private affairs; and the symbiotic relationship where both the government and private entity are involved in mutually supportive actions. State actions subject the private organization to the prohibitions of the 14th Amendment. All are Supreme Court test for state action — Brentwood Academy v. Tennessee School Athletic Assn, 531 U.S. 228 (2001).

The false and misleading argument often heard that the CC&Rs is a private contract and therefore people can hide behind the contract to do whatever they please. We all know that this argument is bogus, because there are so many instances where the government has not only the right but obligation not to enforce contracts that violate the law or are contrary to the best interests of the public. Yet, proponents of the status quo don’t seem to have a problem with this, and demand their “sacrosanct” status.

I repeat, Arizona fails to provide proper due process protections for allegations of violations of HOA governing documents that permit the HOA to deprive the homeowner of his property rights that also include monetary penalties.

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Published in: on January 19, 2006 at 11:46 pm  Comments (1)  

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One CommentLeave a comment

  1. When will the State of Arizona wake up and do what’s right for homeowners – protection of their right to due process?


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