AZ legislature fails to remove invalid statutes from its ARS web page

“Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”[1]

While the SB 1454/HB 2371 redux bills SB 1482 and HB 2695 appear to be dead this session, there is still no bill to repeal the amended statutes in Sess. L. Ch. 254 (2013);[2] those declared unconstitutional and invalid by the Arizona court, and agreed to in a settlement agreement with the Arizona Legislature.[3] The Legislature is intentionally misleading the public as to the legitimacy of the Arizona Revised Statutes in what appears to be a slap at the separation of powers doctrine – we will ignore the ruling of the court.

The following was sent to the Arizona legislative leaders (March 19, 2014 email).

“Dear Legislators,

 “I cannot understand why the SB 1454 statutes declared invalid, and agreed to in a settlement agreement, are not being repealed?  ARS show them as valid laws, without any annotation, which misrepresents their validity to the public.

 “I cannot understand why the HOA HB 2371 redux bills this year, HB 2695 and SB 1482, provide for their repeal contingent on the passing of these omnibus bills?  There is no ‘standalone’ bill to set the record straight.   These invalid statutes cannot remain on the books for another year!”

 

The following was sent to Secretary of State Bennett.  (March 21, 2014 SOS form).

 “Sess. Laws Ch. 254 (2013) was declared unconstitutional in court and certain statutes were found to be invalid. See Staropoli v. State of AZ, CV2013-009991.  An agreement with the AG representing the Legislature was signed and accepted by the court.

“Yet Ch. 254 shows the invalid statutes and there is no annotation that certain statutes are invalid. THIS MISLEADS THE GENERAL PUBLIC!

 “I believe Session Laws and ARS must be corrected to reflect the true status of the statutes.”

 

In HOA SB 1454 progeny: passing SB 1482/HB 2695 would be an act of tyranny by the AZ Legislature (February 25, 2014), I wrote:

“No choice to repeal statutes found unconstitutional

“These statutes were declared unconstitutional by agreement with the AG, representing the Legislature, and an order by the court accepting the settlement agreement.  However, the Arizona Revised Statutes (ARS) still shows these statutes as if they were valid and enforceable laws, which is deceptive to the public accessing the official Legislature’s website, ALIS. There are no annotations to advise the public otherwise.

“The repeal of these unconstitutional statutes is conditioned upon bill approval. A failure to pass both bills will still leave these statutes on the books. There is no stand-alone bill that repeals these unconstitutional statutes as would be expected by a legitimate legislature acting with integrity as representatives of the people, and not as representatives of the special interests. Apparently the defiant eight-hundred pound gorilla, the special interest HOA stakeholders (CAI, AAR, AACM and AHBA),  has flexed its muscle, and the sponsors have reacted accordingly.”

This is incredulous! It is unthinkable that legislative leaders would succumb to the shadow government of the HOA stakeholder special interests, and openly mislead and misinform the public! Furthermore, after being given sufficient notice, the failure to correct ARS can only be viewed as intentional.

What other rational explanation can there be? Perhaps the participating legislator – special interest organization ALEC (American Legislative Exchange Council) was involved? People for the American Way[4] describes ALEC as,

The American Legislative Exchange Council, is a one-stop shop for corporations looking to identify and cultivate friendly state legislators and then work with them to get special-interest legislation introduced and passed.

The American Legislative Exchange Council, serves as a voice for corporate special interests in state legislatures across the country. Its corporate executives, lawyers and lobbyists, along with member legislators, draft, lobby for, and secure passage of a wide array of bills designed to promote corporate interests.

For more information about ALEC see United States of ALEC. (Bill Moyers 30 minute video in 2012 on ALEC. AZ is right up front.)

References

[1] W. B. Allen, “Machiavelli and Modernity,” The Prince, Niccolo Machiavelli, p. 108.

[2] http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/51leg/1R/laws/0254.htm&Session_ID=110.

[3] http://pvtgov.org/pvtgov/downloads/order-final.pdf.

[4] http://www.pfaw.org/media-center/publications/alec-arizona-voice-corporate-special-interests-halls-arizonas-legislature.

AZ Attorney General admits SB 1454 HOA to be invalid and without effect

Pursuant to a consent agreement with the State of Arizona,[1] the Attorney General’s office admitted that SB 1454 violated the AZ Constitution and sections of SB 1454 relating to certain HOA statutes to be invalid and without effect on September 13th.  SB 1454 violated Article 4, Part 2, Section 13 of the Arizona Constitution.  On July 19, 2013 plaintiffs George K. Staropoli and William M. Brown had filed suit against the State of Arizona, CV 2013-009991,[2] seeking a declaratory judgment that SB 1454 violated the Constitution.

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.” Machiavelli and America, Hadley Arkes, p. 145, The Prince (Yale University Press, 1999).

The invalidated Sections are:  2, 3, and 15 – 17, 19 – 21 of SB 1454 (Ariz. Sess. L. Ch. 254). These sections affected the following Arizona Revised Statutes:  9-461.15, 11-810, 22-512, 33-1250, 33-1260.01, 33-1261, 33-1806.01, 33-1812, and 41-2198.01.  We believed that Section 18, adding ARS 33-1261(E) to the Condominium Act, is about political signs and relates to public elections. We agreed it is covered in the title subject of “elections” and is a valid statute.

Particularly disturbing was the amendments that granted special powers to HOA managers to represent HOAs in small claims court and in OAH hearings, powers that state Certified Legal Document Preparers do not possess. The litigation rights of homeowners were put at a disadvantage because they could not also have an untrained and unlicensed third-party represent them.

Many may believe that SB 1454 had HOA amendments that would benefit homeowner rights and this lawsuit removed these benefits.  The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.[3]

The consent agreement will become binding pending acceptance and signing of the order by the Superior Court judge, expected before the 13th.

I would like to thank Executive Director Tim Hogan, Staff Attorney Joy Herr-Cardillo, and the Arizona Center for Law in the Public Interest for their outstanding support of the people.

 

References