Thanks to the vast amount of information found on the Internet I was able to get a copy of the 23 Page CAI brief. It was filed by 3 Arizona CAI law firms, Maxwell & Morgan, Krupnik & Speas, and Carpenter Hazlewood under the umbrella of Community Associations Institute. Recall that the HOA attorney, Goodman Law, is also CAI.
Going directly to the question of depublication, in its Conclusion,
“CAI urges this Court to grant review and consider depublication of the Opinion . . . so that it cannot be cited as binding authority in any future case affecting community associations.” (My emphasis).
Now think for a moment. Why is CAI asking for depublication before a decision is rendered by the SC that could vacate the appellate court’s opinion? Is it because CAI doesn’t expect to win and its brief is just hot air, except for the depublication request?
Surprisingly, it seems that the Justices bought this CAI request and ordered depublication. I have seen several cases where the appellate courts had also adopted CAI’s request outright.
I will skip any analysis of the legalities as argued by CAI as they are irrelevant because the appellate opinion was allowed to stand, also part of CAI’s request. Was this some sort of compromise to get the depublication order issued? I wonder. Nothing surprises me anymore.
Misrepresentation and misleading information
Since the SC admitted to being misled or on a mistaken assumption, as “improvident” is defined, I will address CAI misinformation and misrepresentation that seemed to skip notice of the Justices. CAI starts with the usual implication that it is an educational organization with no mention that as of 1993 it had become a business trade nonprofit heavily lobbying state legislatures across the land. And that it has no HOA as members as of 2005 since HOAs are consumers of HOA member services.
“CAI is a national nonprofit research and education organization. Its members include community associations and board members, other community volunteer leaders. CAI regularly expresses its position on issues of potentially national concern and advocates on behalf of community associations and their residents before legislatures, regulatory bodies and the courts.”
CAI claims to represent “not only itself, but also its tens of thousands of members on this important issue.” The SC is not told that its membership is drawn from less than 9.6% of all HOAs. (See CAI 2016 Factbook: looking into the ‘facts’).
CAI Reasons for Depublication
Playing the authority on HOA-Land, CAI agrees with me that this case is of
“general importance and statewide but also national concern, as the impact on community associations is certainly substantial and states look to other states for guidance in this developing area of law.”
No wonder it wants the opinion shutdown with its depublication request. It could not deal with a strong measure of due process of law as applied to HOAs.
CAI then makes its pitch to defer to the legislature,
“The Arizona Supreme Court has long held that the determination for what is ‘good public policy’ ” is for the executive and legislative departments and that the courts must base their decisions on the law as it appears in the constitution and statutes.”
“This is an area of law that the legislature should control whenever possible- not the courts.”
In other words, the Supreme Court has no place in interpreting and applying the laws as it is charged to do. CAI repeatedly informs the SC that the legislature set all of this out in the statutes and why is the SC making new law, in CAI’s mind. We know why CAI insists on letting the legislature do it. Because it controls HOA legislation by its in depth lobbying.
Once again I urge Arizonans to express their outrage by writing the SC Clerk, Janet Johnson at firstname.lastname@example.org, and ask that the order be reconsidered. I urge the media, who tell their viewers that they can be trusted to tell the truth and to ask hard questions, to ask hard questions now. Ask the Justices to explain just why!