AZ Supreme Court prohibits publication of decision on HOA notice of fines

A depublication order in the Turtle Rock appeal[i] of an appellate  decision was issued by the AZ Supreme Court on July 3rd, which held that the HOA must provide proper notice by publishing its list of fines in order for the fine to be valid. The appellate court held that the HOA did not publish a list of fines to satisfy the legal notice requirements.[ii]  These fines can then be challenged as unreasonable, as in the case of the Turtle Rock case where a $25 per day fine was found unreasonable.

This issue was a matter of general public importance and should be made public in accordance with the Rules of the Arizona Supreme Court. However, this order for depublication by the SC was a very harsh treatment of the appellate decision and is tantamount to sealing the decision from the public.

Having read several hundred opinions, both federal and state  across the country, this is the first time I ever saw a depublication order.  Under AZ Rules of Supreme Court,[iii] the SC can issue an opinion which is then publicized in the law journals and serves as precedent; it can issue a memorandum order that restricts the publication of the decision,[iv] making it non-binding precedent – judges do not have to follow the decision; it can essentially hide the decision from the public with a “depublication” order.

Yet, somehow, a CAI member firm, Carpenter Hazlewood, apparently has knowledge of this SC order and has published it to its followers.[v]  Carpenter Hazlewood was not an attorney of record in the appellate case, who were other CAI member law firms of Goodman Law and J. Roger Wood formerly of Carpenter Hazlewood. But, there is no access on the SC’s web pages to the SC’s order of July 3rd by the public at large.

CAI tells its subscribers that Turtle Rock is no longer law, but “Although the Turtle Rock case cannot be cited in a future fine case as ‘precedent’, a judge could decide a similar future case and reach the same conclusion.”  Yet, homeowner rights advocates and the public in general are left in the dark.  Without knowledge of the appellate decision due to depublication, the homeowner is prevented from adopting a similar line of argument — a sorely needed winning argument in the name of justice — to use it as its complaint in a future legal action.

This decision by the SC could be seen as a restriction on my free speech rights, and that of the public in general, with respect to neutral public political content.  It, as in the case of ADRE and its listing of CAI as a resource,  is not content neutral but biased toward the HOA.

References

[i] Turtle Rock v. Fisher, Ariz. CV-17-0339-PR (2018).

[ii] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)).

[iii] AZ Rules of the Supreme Court, Rule 111.

[iv] See the Arizona Supreme Court memorandum order in Gelb v. DFBLS, CV 10-0371-PR (2011).

[v] See email of July 11, 2018 by attorney Chad Miesen, “Final Word on Turtle Rock.”

Published in: on July 13, 2018 at 11:49 am  Comments (10)  

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  1. […] more information on Turtle Rock see AZ Supreme Court Prohibits publication of decision on HOA notice of fines; AZ SC ‘improvident’ decision in Turtle Rock HOA petition; and Turtle Rock CAI brief urged […]

  2. Clint Goodman, HOA attorney, has had many bar complaints, I know I have filed several myself against him and his friend J Roger Woods was disbarred. Stay away from Goodman for sure. Carpenter Haselwood is in bed with the HOA insurance companies. They love those assigned cases to defend the HOA board members. Easy Money. Too many HOA’s are corrupt because residents do not want to be invovled in their own government. Apathy abounds which results in the lowest form of humanity wanting to be board members. It is a vicious cycle because there is no regulations for either board members or management companies. When with this ever end?

  3. […] [1] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)). See AZ Supreme Court prohibits publication of decision on HOA notice of fines. […]

  4. SCB,

    Agree in principle, but it is not that simple. Having served on a seriously unethical board and attempting to replace a developer-conflicted HOA attorney and auditor, I learned the attorney/auditor can always keep their position if the board majority (ignorantly or corruptly) supports them.

    In addition, the board majority had the attorney threaten me with a personal law suit for causing a potential litigation risk when members learned of my evidence of the attorney’s corruption!

    While I was only trying to expose clear cases of fraud and corruption, my personal attorney advised me to drop the proposed replacement actions as the board and its attorney could bankrupt me through endless stalling in the courts before it could be learned (years later) that the suit was bogus and unwinnable.

  5. This is unbelievable!

    Why can’t the homeowners be protected from this once and for all?

    Andrea

    >

  6. Disturbing. How can this be rectified?

  7. I thought fines or penalty clauses were largely unenforceable in private contracts anyway. I just don’t understand how HOAs can either be public or private entities, and not have any of the responsibilities associated with either.

    • The state supreme court has exclusive and final jurisdiction of the laws of the state. However, if the issue on hand involves a constitutional question, as we have here with the 14th amendment’s “due process of law” requirement, someone with $$$$$ can challenge the decision of the SC in federal court. Or, just maybe but don’t hold your breath, the AZ SC revises its decision.

    • Good point. The issue of private entities fining people was covered in the 1982 Virginia case, United Owners v. Gillman, 292 S.E.2d 378. The VA SC held, “The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment.”

      “The [VA] statute does not purport to grant an association the power to secure compliance with its bylaws, rules, and regulations by the imposition of a fine or the exaction of a penalty.”

      In Arizona, ARS 33-1803(B) overcomes this with a grant of power: “After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association.” Fines, in spite of CAI’s boast, fines are not permitted.

  8. Thanks George. If any HOA is going to issue fines, they should be transparent so they can not target homeowners they do not like, homeowners that do not approve of their actions or disagree with them. They should publish a list of fines ahead of time that would apply EQUALLY to everybody. The fact that some CAI law firms advice HOAs to fine people or “when a fine is not sufficient to try for an injunction” as one law firm placed out in their guidelines is unacceptable and malicious. These type of law firms should not be hired by any HOA or Board. Instead of aiming for harmony, they instigate litigation and they are they only ones that profit via their billable hours. The HOA gets hurt, the homeowner gets hurt, the key party that has anything to gain is the law firm. HOAs do not need these type of law firms involved in their affairs. This exactly what will happen: more lawsuits, costs to the HOAs and the homeowners, HOA type law firms that are supposed to be helping all homeowners going against homeowners, more legal fees for homeowners and insurance companies and when the HOA loses a lawsuit, often the insurance company will drop them, then the D&O deductible increases. Who wins? The money making HOA type law firms. I suggest that every HOA review who they hire and keep away from the law firms that seem to want to instigate more litigation vs. solutions. HOAs should strive for harmony and peace among all homeowners and stop wasting money on HOA attorneys.


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