AG in AZ defends HOA dispute constitutionality challenge

In 2006 in Arizona the Legislature passed a bill[1] 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.[2]

The Arizona Attorney General, nor the Legislature, intervened in support of constitutionality. Not any longer. In its Answering Brief[3] to the challenge by the HOA in CBS-136 HOA[4], 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[5] case where the AZ Supreme Court ordered the appellate court ruling in favor of unconstitutionality to be de-published – not binding precedent.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.”[6] I played a role in that decision when I submitted, pro se, an amicus brief to the Court, which was accepted.[7]

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.


[1] Ariz. Sess. Laws, ch. 324 (2006).

[2] Ariz. Sess. Laws, ch. 185 (2011).

[3] See  state of AZ brief.

[4] CBS-136 HOA v. Cohen, No. LC2018-000316, Maricopa Superior Court 2018.

[5] Gelb v. Dep’t of Fire, Bldg. & Life Safety, 225 Ariz. 515 (App. 2010).

[6] CV 10-0371, 2011 (Ariz. May 24, 2011 ).

[7] See “AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute

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I have been a long-term homeowner rights advocate and author of "Establishing the New America of independent HOA principalities". See HOA Constitutional Government at My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad soceital and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

2 thoughts on “AG in AZ defends HOA dispute constitutionality challenge”

  1. In my view the HOA is a private entity as described by SCOTUS in Dot v. Amtrak and therefore unconstitutional.

    End of dispute.

    Sent from my iPhone

    1. I assume you are referring to 135 S. CT 1225 (2015), DOT v. Assn of American Railroads? It deals with the delegation of legislative powers to private entities, like HOAs. Just substitute HOA for Amtrak. It held, with respect to Amtrak, which I also agree, that “The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.”

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