In the good ol’ medieval days the Emperor or King could do no wrong, because he was the law unto himself. Until, say, 1215 in England where the Magna Carter, written by the nobles against King John of the Robin Hood tale, placed restrictions on his power.
By the time of the American Revolution, the state representatives distrusted federal power and adopted the separation of powers doctrine whereby each branch could serve as a check on the other branches. While the legislatures (Congress) would write the laws the judiciary could declare them in violation of the Constitution. The best reasoning I came across for this was that the legislators were not lawyers and that they could get confused time to time and not fully understand the laws. Never mind that each state legislature has a Rules Committee with lawyers whose duties are to examine the constitutionality of a bill.
Now come the supreme courts to set them straight and rule on constitutionality. But, and a big BUT, the judiciary adopted a new doctrine, one that says all approved bills have the presumption of constitutionality. Goodbye Rules Committees that continue to mislead the public that they serve as a valid check on constitutionality. A challenge could still made by any public person affected by the new law.
In regard to our area of interest, HOA-LAND, that means the average homeowner or HOA can institute, or defend, a constitutionality challenge with the burden that unconstitutionality must be overwhelmingly made in court. This what Annette Cohen is currently facing in her defense of legally valid OAH decisions that are enforceable. (See AZ HOA due process by OAH being challenged once again.) So the game is rigged against the homeowner who, to preserve her OAH decision, must fight the constitutionality challenge, alone. But, what about agency and legislature support?
In 2009-10 I was heavily criticizing the failure of the agency and Legislature to file a brief in defense of the HOA – OAH bill. In the next session the Legislature passed HB2774, Ch. 105 (2010) making it clear that state officials and entities could not be compelled to intervene and defend statute constitutionality. I proudly named it “The Take That George” bill.
Note that if she loses, it’s a huge loss for all HOA members in Arizona.
One would think that the legislature would defend its passing a bill into law. Apparently not, when it comes to HOA laws. By law, an agency is the entity to handle HOA complaints that then seeks “professional” legal help by turning the complaint over to OAH (Office of Administrative Hearings) for adjudication. One would think it, now ADRE (real estate department), would defend its process of handling HOA complaints.
As of this writing, there is no court filing of a notice of appearance by the ADRE attorney, the AG, or by the Legislature, which would be required before the AG can file its brief.