ALJ HOA decisions in AZ are enforceable under a contempt order

One more attack on the validity of the OAH powers to handle HOA complaints bit the dust.  Three former attempts by Carpenter Hazelwood (CAI  member attorneys) to declare OAH unconstitutional resulted in a memorandum order from the AZ Supreme Court that declared the appellate ruling not admissible as precedent.[i]  Today, the appellate court in Whitmer (Pro Se)[ii] set the law straight as can be, although it seems that the HOA attorney and CAI member, Augustus Shaw, couldn’t seem to understand the law.

The case dealt with the explicit law, granting a homeowner the right to seek a court contempt order against the HOA for not obeying an ALJ  decision.  Without such a provision, OAH decisions would be meaningless, as I made clear back in 2005 when the original version of the law was put into effect. ARS 32-2199.02(B) reads,

The order issued by the administrative law judge is enforceable through contempt of court proceedings and is subject to judicial review as prescribed by § 41-1092.08.”  How plain can that be?

Somehow in a confusing, twist of words, the HOA attorney makes a suspect argument that ARS 32-2199.02(B) states that “the proper venue for a contempt of court hearing is the administrative Courts.”[iii]

The Superior Court in its appeal of the ALJ decision said it had no jurisdiction to hear contempt pleadings.  Can you believe that?!!  This appellate court decision said that the superior court was wrong and it must hear Whitmer’s pleading for a contempt order against the HOA.

 What this important, but unnecessary decision, clears the way for is that an HOA’s failure to obey an ALJ order at OAH  is subject to contempt of court.   This is the homeowner’s act to get compliance, and if the contempt order is violated, then either fines or jail time for the violator.

 No wonder CAI fought a desperate battle!

 

References

[i] “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DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published.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.” Gelb v. DFBLS, CV 10-0371-PR (2011).

[ii] Whitmer v. Hilton Casitas HOA, CA-CV 17-0543 (2018).

[iii] Whitmer v. Hilton Casitas HOA, CV2016-055080.

 

Published in: on July 10, 2018 at 5:41 pm  Comments (6)  

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6 CommentsLeave a comment

  1. George- Keep chipping away at the illegality of the HOA ‘private entity’ like a beaver knowing down a tree to make a dam and you will prevail over ego maniacs like HOA attorney Austin Shaw lll…who is a plague on society. Your efforts are beginning to weaken the tree and someday the entire unconstitutional HOA mafia will collapse like a wet taco!

    BLC

    Sent from my iPhone

  2. The primary unwritten goals of CAI are to defend the HOA entity (corporation) against any perceived attack, including consumer expectations of accountability, AND to increase the power of HOA boards in a way that preserves and generates revenue for trade group members.

    Put another way…

    Generally… a piece of proposed legislation or policy decision that CAI opposes is a DEFENSE strategy with the goal of reducing accountability. And a bill that CAI sponsors or a non-legislative policy that CAI promotes is a MONEY MAKING strategy.

    • You got it right on! Yet, people swear by CAI as the only recourse to help them run the HOA, little knowing how much they are being conned!

      There are existing legal methods in law that can preserve the private nature of an HOA and its amenities, but belonging to the Union and subject to the Constitution, the Bill of Rights and the 14th Amendment. All of which serve to protect the homeowner-citizen from governmental abuse — public or private. HOAs serve the private agendas of CAI, otherwise they would need to “keep their day jobs”.

      Wake up people!

  3. Why is it that the so called “HOA attorneys and their firms” that are being paid to protect homeowner’s rights keep going AGAINST homeowners? Why do insurance companies keep wasting money on these type of attorneys that have nothing to gain but their billable hours?

    • I’m sorry, but you are mistaken and under the influence of misrepresentations. HOA attorneys work for the HOA corporation– the Board — and not the homeowners. And they use your assessments to sue you.

  4. Augustus Shaw obviously has to defend his position with CAI. He works for HOA boards against the HOA members. It is all about the money and who these attorneys can earn the big bucks from. Beat up on the little man. HOA government continues to be unregulated with the egomanic board members in control. When will homeowners wake up and pay attention to their government? It is sad that because of apathy, the big money people win everything.


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