Arizona CAI member, and president (as of Jan. 1, 2013) of its College of Community Association Lawyers, Scott Carpenter, makes several misleading statements about the constitutionality of Arizona’s Office of Administrative Hearings adjudication of HOA disputes. (Top 10 Legal Issues for 2013 video seminar).
Speaking of the constitutionality of the statute, Carpenters states, “We took it up to the court of appeals and the supreme court of Arizona and they said this whole process is unconstitutional.” He appears to be speaking about the 2008 Gelb v. Casa Contenta HOA in OAH, the only one that was eventually appealed to the Arizona Supreme Court. The case was won by the HOA, but Gelb appealed to the superior court. In superior court the HOA attorney, the winner, challenged the constitutionality of the law in a case that its client had already won! What was the real purpose of the appeal? For the HOA or for CAI and Carpenter.
Allow me to clarify the events relating to Carpenter’s obsession with OAH due process for homeowners. It was the third OAH challenge by Carpenter in his attempts to shutdown OAH adjudication. The first was held to only apply to the HOA in the decision in question. The second was held to apply by a superior court default decision to all HOAs, but Carpenter needed an appellate decision in order for the unconstitutionality ruling to become precedent, binding, on all Arizona HOAs.
While he got his appellate decision, Gelb appealed the decision to the Arizona Supreme Court. I filed an amicus curiae brief to inform the Court of certain facts relating to the conduct of the HOA attorneys and lower court decisions. (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process). In spite of Carpenter’s misleading statement,the SC did not hear the appeal, but issued an order that the Gelb appellate decision of unconstitutionality was not to serve as ANY precedent, and thus not binding on future cases. Carpenter didn’t get what he wanted
MINUTES No. 3161 (May 24, 2011) Arizona Supreme Court CV-10-0371-PR
GELB v DEPT OF FIRE BUILDING AND LIFE/SEDONA CASA
Court of Appeals Division One 1 CA-CV 09-0744
ORDERED: Appellant’s Petition for Review = DENIED.
FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published,
pursuant to Rule 111(g), Arizona Rules of the Supreme Court.
(The appellate decision shows as a MEMORANDUM).
In regard to the OAH bill becoming law, Carpenter brazenly declares a conspiracy to pass this law saying “When the executive and legislative branch conspired together to deprive the judicial branch of their essential role . . .” Talk about a loaded statement that the sponsor, and now Senate President, Andy Biggs and Governor Brewer would love to hear, especially when Carpenter adds, “It is still unconstitutional.” This is pure one-sided opinion, an ipse dixit – no supporting arguments.
Carpenter finally makes his real motives plain, in this video, when he encourages people to file suits to raise a constitutionality challenge to the new 2011 law. He also laments that “the whole process is contrary to HOA law” in regard to the payment of attorney fees, implying some sort of superiority of restrictive covenants over constitutional law. He fails to fully inform his audience and viewers of the fact that attorneys are not required at OAH, and that it’s the HOA’s decision to spend and pay for these unnecessary fees.