How HOA lobbyists manipulate legislators

In the New America, the soon to be renamed America: The United HOAs of America, evidence continues to demonstrate the extend to which HOA promoters will go to protect these defective, authoritarian regimes.

In this carefully crafted Arizona statute, ARS 33-1805, “disclosure” pertains to membership access to HOA records, and not to the judicial laws or court rules pertaining to subpoenaed disclosure under Ariz. R. Civ. P 26 and 26.1.  [These disclosure rules can be found in almost identical in all states since they follow the federal rules]. It attempts to create an aura of judicial protection, but it cannot without being a constitutional violation of due process protections and the equal application of the laws. 

The application of this statute — unlike judicial laws and rules that do not protect existing corporate records from disclosure — to judicial disclosure is an invalid extension to judicial proceedings.  Once litigation commences, the rules of disclosure prevail.  It is a clever HOA protectionist statute to hide substantive documentation from homeowners, documents to which they would otherwise be entitled to access, that flies in the face of legal doctrine.  

It was neither the intent of the legislators to extend this unjust statute to the courts, nor to permit the statute to shield the HOA from “crime-fraud” litigation.  Must the member go to court under a legal action to determine from his independent analysis of the corporate records that a crime may have been committed?  This is the Mafia scenario:  no records, no crime.  By the shrewd wording and the omission of “existing” from the statute to avoid recognition of the true application of legal doctrine, 1805 implies that existing records are protected.

ARS 33-1805(B): (my emphasis)    

Books and records kept by or on behalf of the association and board may be withheld from disclosure to the extent that . . .

(1)   Privileged communication between an attorney . . .

(2)   Pending litigation

(3)   [executive] meeting minutes . . .

  Ariz. R. Civ. P. 26 General provisions concerning discovery [my emphasis]

(b)(3) Trial Preparation: Materials

“[A] party may obtain discovery of documents . . . prepared in anticipation of litigation or for trial . . . only upon a showing that the party . . . has a substantial need of the materials in preparation of the party’s case . . . .”

1970 Amendments

“[T] his Rule . . . does not extend the quality of absolute protection  beyond the ‘mental impressions, conclusions, opinions, or legal theories’ of the person who is entitled to the protection.” Zimmerman v. Superior Court, 84 Ariz. 85, 402 P.2d 212 (1965).

Author’s Comments (Arizona Civil Rules Handbook, Thomson -West, 2005)

9.  privileged materials. “The attorney-client privilege applies only to confidential communications with securing and rendering legal advice. State ex rel v. Corbin v. Weaver, 140 Ariz. 123, 680 P.2d 883 (App. 1984).”  See ARS 12-2234.
10. anticipation of litigation.  “Whether this ‘work product’ privilege applies is determined by . . . whether it contains analyses or opinions or purely factual data, and whether it was requested or prepared at the specific instance . . . or in the ordinary course of business.”

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Published in: on June 18, 2007 at 10:32 am  Leave a Comment  

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