Judicial system forces HOA member to defend statute constitutionality

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.

 

Published in: on August 26, 2018 at 9:40 am  Comments (3)  

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3 CommentsLeave a comment

  1. Here’s a copy of my email to ADRE Commissioner Lowe:

    Judy,

    On behalf of homeowners in HOAs facing injustice by HOAs, I’d like to thank you and your staff for standing up for OAH adjudication in spite of the fact it puts a burden on ADRE. The case is winnable by criticism of the Waugaman decision as distinguishable from the cited cases.

    If I can be of any help please let me know.

    Thank you once again.

    George

  2. YOUR LAST SENTENCE IS THE MOST DISGUSTING THING I’VE READ WHEN IT COMES TO HOAs AND THE LAW. TO THINK THAT LOUIS DETTORE HAS NOT FILED A NOTICE OF APPEARANCE IS REPREHENSIBLE. Members of HOAs could not be more vulnerable! I certainly feel for the Ms Cohen.

    It is all a matter of control. HOAs are a huge step towards socialism. It won’t be long before we are all told how to vote!

    • I’m sorry you feel quite upset with ADRE, but I was careful to say that “as of this writing.” There is still time to file a notice, since the judge ordered the HOA to properly provide notice to all parties. Filing a notice starts with the recording of a satisfactory notice to the judge. For all my 17 years of involvement I tried to walk a delicate line between firm, and sometimes harsh criticism as warranted, and not get personal. Understand that these ADRE MUST operate under this faulty system and obey the laws governing ADRE. Even when responses have shown a personal bias against homeowner justice and the law I try to stay above these shameful attitudes. We need people in power to stand by us in order to win. In early January I met with Lowe, Detorre and Gardner and found them all trying to help as best they could. Their hands are tied in many ways and they must answer to the powers that be. I think we have a good chance of AG support, who is ADRE’s lawyer.


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