Judicial precedent and HOA bias

Political scientists and public opinion organizations are looking to the judiciary to fulfill its constitutional role as a separate and equal branch of government, and to establish justice in HOA-land. Others argue that the independence of the judiciary, in general, has been tainted over the years, and justice with respect to legal principles is tainted by the personal preferences of the judges themselves. Why else is there the highly controversial debate on the selection of new Supreme Court Justices? America is no longer a land under the rule of law, but a land under the rule of the men in black and their political leanings; where the doctrine of stare decisis, itself, falls victim to the preferences of the judges.

Stare decisis is the rule of law that imports the aura of legitimacy on the judicial process by holding future decisions to be bound by prior decisions that serve as “precedent.” The doctrine of stare decisis

permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government. Vasquez v. Hillery, 474 US 254 (1986).

Hansford and Spriggs, researchers who had conducted studies on the use of precedent, state: “Americans overwhelmingly believe in the idea that judges should make decisions based on neutral, legal criteria“, that the doctrine of stare decisis fosters “the legitimacy of the judiciary as an institution and the legitimacy of court decisions“, and that “The justices agree with the idea that their capacity to rule hinges on legitimacy.” And since some third party must implement their decisions — carry them out or enforce the law — the researchers argue that “legitimacy encourages compliance, it enhances the powers of the courts and facilitates their ability to cause legal and political change.” (The Politics of Precedent on the U.S. Supreme Court, Princeton Univ. Press, 2006).

However, the case reporters are full of decisions where precedents have been reversed or overruled by judges, declaring that the cited precedent is “distinguished from the case at hand,” or simply “does not apply”, or declaring an outright “do not agree with.” So, in spite of the above statements, following precedent is not an absolute rule. And, if one thinks about it, if a precedent were based on an error or misapplication of law, then justice demands that the wrong be righted. It should be readily accepted that the modification of a precedent with the aim of “doing justice” is necessary to maintain the integrity of the judiciary. What then accounts for how and when a precedent was actually revised in some manner (which was the purpose of the research by Hanford and Spriggs mentioned above)?

The answer to this question, as the researchers found, was given in the opening paragraph above: the doctrine of stare decisis, itself, falls victim to the preferences of the judges. The closer the precedent was to the judges views, the more the precedent would be followed, and vice versa. Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges (p. 75). (Of course, the preferences of the judges are not the sole factors in arriving at their decisions, but the research is supportive on the effect of personal preferences on the acceptance of a precedent).

Based on the above, it is not too difficult to understand why court decisions have, in general, favored homeowners associations over homeowners. State public policy is replete with HOA protectionism, which has an influence on the judges, and there’s a long history of HOA favorable decisions to serve as precedent. The negative precedent history is a direct result of the adhesion nature of the HOA governing documents and the state laws that deny, by commission and omission, homeowner protections. In short, no wonder the odds are against the restoration of individual liberties and freedoms.

Two important state supreme court decisions that stand out as examples are Inwood v. Harris (736 S.W.2d 632 Tex. 1987) and Committee for a Better Twin Rivers v. Twin Rivers (929 A.2d 1060 (NJ 2007). A careful reading of these two HOA cases, and, in particular, the court holdings and reasoning behind their decisions, will raise issues of HOA bias. Why did the judges emphasize some precedents and ignore others? What issues were addressed by the judges? What issues were dismissed or ignored? Why? In reaching their decisions, was justice done? (These questions should be asked when reading any court decision).

Another very good example, not a supreme court decision but a decision by a lower court in an appeal of an administrative law judge holding, is the Arizona superior court judge decision declaring a two year old statute as unconstitutional: Troon Village HOA v. Waugaman (see Examining the Waugaman decision in the interest of doing justice, February 5, 2009). In this case, the selectivity of the judge comes through when she ignores, for the most part, the Attorney General’s and defefendant’s briefs, jumps to one aspect of a precedent, and uses, verbatim, the plaintiff’s argument as her holding.

And, quite interestingly, a second appeal, Phoenix Townhouse v. Merrit (see The State of Arizona will not protect buyers of HOA homes!), to broaden the Waugaman decision to apply to all HOAs cites the Waugaman decision, not an appellate court, as precedent! The behavior of the judge in this appeal raises concerns of abuse of discretion and judicial activism, or is it judicial lawlessness.

In summary, the calls by the public opinion organizations for vigorous judicial activism in support of liberty and the Constitution are desparately needed to address the ills of society wrought upon Americans by so-called voluntary organizations, the HOAs. Clint Bolick, Director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, is angered by examples of judicial lawlessness that “deserve contempt, for they do extreme damage to the integrity of the judiciary and to the rule of law that undergrids a free society.” (David’s Hammer: the case for an activist judiciary, Cato Institute, 2007).

And with respect to the treatment of precedent and the effect of the personal preferences of the judges, the judiciary needs to revisit the purpose of the Constitution, as stated in its Preamble, the first being “to establish justice.”

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Published in: on March 31, 2009 at 8:13 am  Comments (5)  

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  1. […] Returnng to the argument at hand, judicial bias against HOAs, as I wrote previously in Judicial precedent and HOA bias, […]

  2. How does one get rid of an HOA? Several people in my subdivision are asking that very question…

  3. Re: the /Troon Village HOA v. Waugaman/ ruling. I have to say that I agree that the OAH system probably was unconstitutional.

    Might I suggest that there is a simple solution. Rather than the OAH, such cases of equity should be heard by the local Justice Court as the AZ Legislature first proposed.

  4. […]  Precedent, or “stare decisis”, is another principle or doctrine of American jurisprudence that serves to establish an aura of acceptance by the people that America is a land under law, not men.  This doctrine has an inherent fallacy or inconsistency with the message that the courts are here to do justice.  Suppose a decision was a bad one, or motivated by a personal agenda?  How does it get overturned and corrected if the doctrine of precedent is cast in concrete?   However, precedents are indeed overturned, but only occasionally are Supreme Court opinions overturned (See 1954 Brown partially overturning the 1896 Plessy v. Ferguson  on equal but separate facilities).  Like the debate on the ideological leanings of a Justice, there is evidence to show that the personal views of judges do influence their decisions on a particular precedent .  And the concern for justice is not a factor.  Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges.  (See Judicial precedent and HOA bias). […]

  5. […] For more, see Judicial precedent and HOA bias. […]


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