HOA statutes as indirect government acts – Part 1

HOA statutes as indirect government acts and devises that circumvent the Constitution 

Arizona Superior Court Judge Downie, in her decision on the unconstitutionality of OAH adjudication of homeowner association disputes,[i] summarily dismissed the legitimate intent of the legislature to attain a constitutional due process adjudication for homeowners, who sought a fair and impartial hearing of their HOA complaints.

The legislature may have had valid policy reasons for devising a different system for resolving homeowner association disputes. But it appears that the Department of Fire, Building and Life Safety is a mere figurehead or “parking lot” for those disputes.

Judge Downie had said that, in effect, DFBLS was  a devise or a scheme (“a mere figurehead or ‘parking lot'”) to get around the constitutional constraints on the delegation of legislative powers.  However, in her analysis of legislative intent, as part of the four-part Hancock test, she omitted any discussion of the actual intent of the legislature with respect to HOA adjudication, and focused solely on the original purpose to establish the DFBLS agency. In short, she failed to address the intent to modify the agency’s powers in regard to the HOA enabling statutes, summarily dismissing it as a devise.  The legislature’s intent is clearly stated in the Attorney General’s brief (not mentioned in her decision, yet the HOA’s reply to the brief is quoted as part of the judge’s reasoning),


Fourth, as a practical matter, permitting OAH to adjudicate complaints arising from the Community Planning Act is critical to the goal of ensuring compliance with the Act.  Without this remedy, an owner would be forced to go to court even if the nature of the complaint did not justify the time, effort, and expense of going to court or forego any relief from violations of the Community Planning Act. See Minutes of Meeting Before the H. Comm.. on Judiciary on Feb. 16, 2007, 471h Leg. 2nd Reg. Sess. 10 (Ariz. 2007).  (Representative Farnsworth advised that going to court was not an adequate remedy to resolve owners’ complaints against homeowners’ associations); see also J. W. Hancock, 42 Ariz. at 406,690 P.2d at 125 (noting that public policy favored permitting the Registrar of Contractors to resolve disputes between private parties because some disputes “would not justify the time and effort of going to a court”).[ii]


It is well accepted doctrine that there are several general purposes for delegating authority to and creating administrative agencies, and modifying their enabling acts.  The judiciary has long accepted the position that as long as it has the right of review, as in this instance, there is no violation of the separation of powers doctrine  “That the essential attribute of judicial power are retained [by the judiciary] so long as [it] may fully correct agency determinations on the matter of law and overturn unreasonable findings of fact.”[iii]  And, the generally reasoning of,[iv]


1.      The assignment of very limited and specific powers: DFBLS was only to process HOA complaints and forward to OAH for adjudication,

2.      Handling by specialists: ALJ judges specialized in judicial decision-making, which was the extent of the delegation of authority to hear HOA disputes, and

3.      Contributing to  “inexpensive and expeditious” administrative processes (“to avoid the hostility to labor as the courts had then shown”): OAH was a cost effective and amenable procedure — no rules of civil procedure or attorneys —  for resolving disputes; even the less costly (as compared to superior court costs) JP courts were under the rules of civil procedure giving the HOA a decidedly unfair advantage in a very practical manner.


With respect to the delegation of authority itself, in regard to state agencies, a valid intent for delegation had to show “the persons and activities potentially subject to regulations” [homeowners subject to the condo and planned community statutes], “the harm sought to be prevented” [violations of state law and the governing documents], “and the general means intended to be available . . . to prevent the identifiable harm” [DBFLS processing of complaints for OAH adjudication].[v]  Yet, these factors seemed to have escaped the judge’s attention.


[i] Record Appeal Rule/Remand, Troon Village Master Assn v. AZ. Dept Fire, Building & Life Safety, LC2007-000598, Oct. 2, 2008, Nancy Waugaman, party in real interest.

[ii] The Attorney General’s brief in support of the constitutionality of A.R.S. §§ 41-2198 to -2198.05, Troon Village Master Assn v. AZ. Dept Fire, Building & Life Safety, LC2007-000598, June 13, 2008.

[iii] Allocation of Judicial Power, § 5.1, p. 123, Administrative Law, 2nd ed., (Thomson-West 2002).

[iv] Id, p.118.

[v] Id, The Delegation Doctrine, § 1.2, p. 29, footnote 5.

Published in: on October 14, 2009 at 11:38 am  Comments (1)  

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  1. Here’s a way to file a complaint, allow OAH investigator to screw-up everything, and then defeat the OAH Adjudicator during the hearing, then seek appeal assistance and prove that their process and procedure has invaded 1st Amendment rights, has violated 5th Amendment rights, and that this unconstitutional procedure which gives you a 9th Amendment claim against this Agency of the Federal Government. Once you can win on appeal, (and get the $$$$$ you deserve) a decision in your favor is almost guaranteed. I’ve busted the legal system, wide open, so take-em down >>> http://amurderconspiracy.wordpress.com/ <<<<

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