Yesterday, May 24th, the Arizona Supreme Court simply DENIED hearing this Petition to vacate the lower court ruling that the Arizona agency, DFBLS, had violated the separation of powers doctrine when hearing HOA disputes . Disappointing, but not surprising given the new laws to take effect on July 20th, that addressed the separation of powers opinion. It still allows DFBLS to deny accepting complaints since ARS 41-2198(3), the statute authorizing DFBLS, was not vacated. It still stands.
Consequently, in the event that a complaint is filed on or after July 20th and DFBLS denies accepting the complaint, another challenge to the constitutionality of the law would be necessary. If DFLS accepts the complaint, rest assured that Darth Vader is ready with another challenge.
Why is this possible? Doesn’t the appellate court opinion serve as precedent and that’s that? NO, the door was opened by the Court! The Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.
Why allow another shot” at constitutionality? Maybe, as I have argued, the arguments in support of the law relied on the same two cases, Cactus Wren and Hancock, accepted as controlling in both Gelb and in Waugaman (in the only other case that involved a decision, the superior court decision Troon v. DFBLS, Waugaman, LC2007-000598, Maricopa County), left something to be desired. Like the entire body of constitutional law and on the administrative procedures act concerning the acceptance of quasi-judicial authority of executive agencies. Yes, sharing does occur, and none of the applicable rulings were based on the extent of the agency’s regulatory functions, as the DFBLS cases were, (Gelb essentially followed the arguments in Waugaman).
July 20th will be the next phase of the fight by homeowner rights advocates for due process and the equal protection of the laws. The AZ Supreme Court just “punted.”