Intervenor files for justice in AZ HOA constitutionality case

An application for intervention was filed today by George K. Staropoli in the Meritt case on OAH constitutionality, one day before the effective date of the judgment against the statute. An intervenor is a person of interest who seeks to protect his interest concerning a matter of law and fact in common, but is not a party.  The generality of the judgment put the Intervenor in a position where his interests will be damaged. 
The judge must now decide on my application, and if accepted, my Answer, my defense in full, becomes part of the case now open for trial.  The CAI/HOA plaintiffs have a right to reply within 5 days.  The decision on acceptance should come rather quickly.
Intervenor asserts his right to intervene under Ariz. R. Civ. P. 24(a)(2) since he is a homeowner living in an HOA in Maricopa County and his right to seek a fair and just adjudication of complaints against his HOA under the statute in question.” 
“Furthermore, the failure of any of the defendants to respond and defend the constitutionality of  the statute allows intervention under R 24(a), ‘unless the applicant’s interest is adequately represented by existing parties.’  Intervenor was quite disturbed by the failure of any of the named defendants or real defendants to respond to the Complaint, recognized by the Court in its order as, in reality, a default judgment.  Intervention after a judgment has been rendered does not automatically preclude intervention.”
“Intervenor denies the validity of the Waugaman order, in paragraph 13, as it relied heavily on Cactus Wren, which relied on the error in Hancock.  Although the Hancock four-fold test was used in the Waugaman analysis, Judge Downey erred in her analysis, as indicated in paragraphs 3 and 10 herein.”
Intervenor denies the allegations in paragraph 17 that the statute in question is unconstitutional.  The Attorney General filed a brief (”Attorney General’s Brief in Support of the Constitutionality of ARS §§ 41-2198 – 2198.05″, June 13, 2008) in Waugaman supporting the constitutionality of the statute in question, and Intervenor incorporates the reasoning contained in the brief into its argument both for the acceptance of jurisdiction and the ultimate resolution of the issues,  attached hereto as Exhibit A .  In its Answer in Terravita v. Brown (LC2007-000588) the Attorney General denied that the statute was unconstitutional
Published in: on February 11, 2009 at 5:03 pm  Comments (1)  

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  1. This should go back to the legislature for new legislation that is consistent with the separation of powers.

    Some of the same arguments were applied in a Virginia Supreme Court opinion in Unit Owners Ass’n of Build America-1 v. Gillman, 223 Va. 752, 292 S.E.2d 378 (1982) to owners associations. That court opined that levying fines is a judicial function and can only be done by the judicial branch.

    It is interesting in the Arizona opinion that a limited judicial function is allowed in the executive branch if the department also has a related regulatory function.

    Certainly a method is needed for individual owners/members of CIDs/POAs to seek relief in the courts that is quick, certain and inexpensive. The POA has the resources of all the property units; the individual owner/member has only his/own resources. The economics of litigation are stacked against the individual owner/member.

    Individual owners/members need a forum for discussing the various alternatives.

    Moreover, this should be treated as a consumer protection issue.

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