In 2006 in Arizona the Legislature passed a bill providing for the Office of Administrative Hearings, through the DFBLS agency, to resolve HOA disputes. Over the years from 2007 – 2011 its constitutionality was challenged several times by CAI Arizona, resulting in declarations of unconstitutionality. However, in the final case, Gelb, the AZ Supreme Court de-published the ruling as applied to ALL HOAs, making it non-binding precedent. In 2011 the statute was amended, addressing Gelb.
The Arizona Attorney General, nor the Legislature, intervened in support of constitutionality. Not any longer. In its Answering Brief to the challenge by the HOA in CBS-136 HOA, the Assistant AG provides a history of these decisions; and supports the constitutionality of OAH disputes of HOA issues by ADRE. It is a slap in the face of CAI’s attempts from 2007 – 2011 to kill OAH. The AG responded for once in this delicate statute in favor of OAH resolution.
The brief also contains a summary of the Gelb case where the AZ Supreme Court ordered the appellate court ruling in favor of unconstitutionality to be de-published – not binding precedent. “But in May 2011, the Arizona Supreme Court denied review and ordered the Court of Appeals’ decision de-published without explanation.” I played a role in that decision when I submitted, pro se, an amicus brief to the Court, which was accepted.
This is a major change in the attitude of the AG’s office, long overdue. ADRE may not be perfect, but it’s a step in the right direction. What is needed is legislation to close the loopholes that CAI has been using to defeat its purpose.
 Ariz. Sess. Laws, ch. 324 (2006).
 Ariz. Sess. Laws, ch. 185 (2011).
 See state of AZ brief.
 CBS-136 HOA v. Cohen, No. LC2018-000316, Maricopa Superior Court 2018.
 Gelb v. Dep’t of Fire, Bldg. & Life Safety, 225 Ariz. 515 (App. 2010).
 CV 10-0371, 2011 (Ariz. May 24, 2011 ).