Judicial integrity: support Constitutional protections or the New America of HOAs

It was not with a light heart or some desire for revenge that I filed a complaint against Maricopa County Superior Court Judge McMurdie for his conduct subsequent to his default decision in Phoenix Townhouse HOA v. AZ Off. Admin. Hearings [OAH], LC 2008-000740 — the decision holding the statute that allowed for the OAH adjudication of HOA disputes to be unconstitutional. Judge McMurdie’s Minute Entry Order of March 2, 2009 struck from the records my letter of new facts to him, containing legal filings as supporting documents, and also ordered the Clerk not to accept any further materials from me. My earlier attempt to intervene on behalf of all homeowners living in homeowners associations, who are affected by the decision, was also denied without explanation.

The conduct of Judge McMurdie was so egregious a violation of his judicial duties as a public servant that it raises the question of the integrity of the court and its obligation to do justice under the laws of Arizona.  This incredible “gag” order by McMurdie violates the overall intent and purpose of the Code of Judicial Conduct “that judges, individually and collectively, must respect and honor the judicial office as a public trust” (Preamble), that “a judge shall uphold the integrity and independence of the judiciary” (§1), and that “a judge shall perform, the duties of Judicial Office impartially and diligently” (§3B).

The statute  attempted to provide an attainable degree of due process and a fair trial for homeowners by means of the independent OAH tribunal. A decision where the Attorney General, attorney for the state agencies, reversed its involvement from filing a brief in support of the statute to one of no longer interested. Where the Legislature also refused to participate and defend the two year-old statute. And where the alleged defendants and real parties in interest, the OAH Petitioner, also failed to respond.

The conduct of the judge must be given “heightened scrutiny” as deserving an issue of statute constitutionality. The role of an independent judiciary in the separation of powers doctrine, which was the heart of the issue before the court, was upheld by the court in its denial of OAH adjudication. Yet, my attempts to obtain justice were summarily dismissed without an explanation or a justification. Was the Court acting independently?

It is inconceivable that my submitted information would be summarily dismissed, kept from the public, not acted upon — in short, a “gag” order — and the default decision allowed to stand. A decision that would be declared void ab initio (from the beginning) based on my submitted materials, and where Judge McMurdie had the power to so act under Ariz. R. Civ. P. 60(c): “This rule does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.

For the Court to do justice and maintain its integrity, my “letter of fact” and supporting materials must be made part of the case. There must be transparency if the judiciary is to justify its claim to independence in upholding the laws of the land.

Published in: on April 15, 2009 at 8:07 am  Comments (1)  

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  1. […] Memorial Day: American soldiers are defending a New America, one without democratic protections   Judicial integrity: support Constitutional protections or the New America of HOAs   The New American federalism: the surrender of states rights to HOAs Published […]

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