Business judgment rule not right for sui generis HOAs

This examination of the business judgment rule is a supplement to my amicus curiae brief to the AZ Supreme Court (Taylor v. Bendt, CV-21-0049, awaiting decision to hear case) in which I provided guidance in regard to 1) HOAs are sui generis created by rejecting Constitutional protections and instituting and supporting  separate laws for special organizations, 2) HOA-Land has been under the heavy influence and domination of the national lobbying entity, Community Associations Institute (CAI), and 3) as a result of the above a pro-HOA mindset has crept into our judicial system resulting in bad laws setting  bad precedent.

You can read the complete 30 page treatise (15 pages of argument plus apprendices) here .

AZ amicus brief seeking answers to constitutional HOA questions denied

A constitutionality challenge[1] was made to Arizona’s SB 1482 “HOA Omnibus Bill” (ominous bill), the 2014 version of SB 1454 from last year.[2]   Although the law has become effective this past July 24^th, the case is still active.  Yours truly filed an amicus curiae brief in superior court on behalf of the Pro Se plaintive, Dave Russell, to which the Arizona Attorney General, lawyer for the State of Arizona, found objectionable. The judge denied my motion to file the brief.

The AG objected under a too one-sided against Arizona argument (complete objection).

Defendant, State of Arizona, opposes George K. Starapoli’s Motion for Leave to File Amicus

Brief in this matter for the following reasons:

1. There is no authority to file an Amicus Brief in this matter in the superior court.

2. It would be prejudicial to the State to allow the brief to be filed at this time. The State has responded to the Plaintiffs Motion for Expedited Preliminary Injunction, and that Motion could be considered based on the documents already filed by the parties. To allow the brief to be filed would prolong the process, require additional response, and potentially confuse the issues.

 

I did not refer to the Injunction, but the complaint itself, so what gives??  What does “potentially confuse the issues” mean?  Too much for the AG or judge to handle???

On the 28th, the judge ruled (complete minute entry),

 

On July 11, 2014, George Staropoli filed a “Motion for Leave to File an Amicus Curiae Brief in Support of the Plaintiff”. The Court has reviewed this motion and considered the circumstances. Under the circumstances,

IT IS ORDERED denying the above-identified motion.

What does “under the circumstances mean?????    Was it too confusing for the court to handle????

 

I was informed that a leading public interest nonprofit that has argued before the Arizona Supreme Court has had its amicus briefs to the Superior Court also denied.  I expected as much, but I had hoped for a dissertation as to why the denial beyond “under the circumstances.”

 

The issues that I raised in my amicus brief were:

 

• Is a bill allowing HOA managers to represent HOAs while prohibiting the homeowner to engage an unlicensed and untrained third-party to speak for them in small claims court an unconstitutional special law in violation of the equal protection of the law under the US and Arizona Constitutions? (SB 1482, Section 7).

 

• Do the renter documentation requirements and restrictions constitute an unconstitutional interference with private agreements as it creates more harm to the homeowners than the benefits of an unstated government interest?  (SB1482, Sections 11 and 15).

 

The court must still decide on the injunction to not enforce the bill (or the part dealing with HOA managers in small claims court), which it cannot do because Rule 31 of the Arizona Supreme Court forbids non-lawyers from representing anyone in court, including small claims court.  And the Constitution says the SC controls its procedures and not the legislature!  So, folks, what’s the fuss all about?

 

What this incident has demonstrated is the use of the law by the AG and an eagerly cooperative court.  Was my brief so harmful to the State of Arizona’s case that the truth must be hidden?  Or was my brief valid because the overwhelming facts and background presented made a strong case for the tyranny of the legislature that resulted in an unconstitutional law, a law which was motivated by domineering HOA stakeholders, the special interests?

What my little exercise has demonstrated is the silence on the part of our government.  Why?  Because like an HOA they don’t have too!  A law is constitutional because the ‘sovereign,’ the legislature, has spoken and can do no wrong.   Like an HOA, the state well knows it cannot make a valid and compelling justification for the bill in question, SB 1482.  Any such attempt would demonstrate to all that the State of Arizona was defending the indefensible.  So, mum’s the word.

How does a citizen successfully argue his case when the State’s defense is, “Because I can!”

 

 

References

[1] See the complaint, Russell v. State of Arizona, CV2014-093-052 (Maricopa County Superior Court).

[2] See in general: A lesson in HOA reforms and power politics in AZ; AZ legislature fails to remove invalid statutes from its ARS web page.