Waugaman victory in superior court – OAH-029

Latest AZ Superior Court holding supports OAH homeowner petition that raised CAI unconstitutionality challenges to OAH adjudications of HOA disputes

 (See OAH: 07F-H067029-BFS)

After 2 years of litigation,   Nancy Waugaman wins her legal battle that sustains AZ Office of Administrative Hearings (OAH) findings of board error that was based on CAI attorney advice.    

 Waugaman’s interpretation of Section 11.02 is preferable for either of two reasons. First, the Association’s interpretation renders meaningless the phrase “total voting power” or, at minimum, construes it to mean “votes cost by those present.” That reading is unsupported by both the plain language of the statute and the Association’s actions taken prior to October 16, 2006. Second, even if Section 11.02 were to be held ambiguous, the relevant Restatement provision urges Waugaman’s position. See Restatement (Third) of Property §6.17 cmt. b (2000).

 (Maricopa County Superior Court, CV 2008-027251 Ruling of July 31, 2009).

  One would think that those expert HOA attorneys, Carrie Smith of the Carpenter Hazelwood law firm, would know the law better.  However, understanding that they will do everything to win for their HOA clients, no matter how frivolous, it is not surprising.  They undoubtedly believe that the homeowner will eventually go away because of the personal costs to him, while the HOA spends the members’ assessments on frivolous suits.  Congratulations to Nancy Waugaman for going the distance! 

 The attorneys for this Petition were Carrie and Jason Smith of the Carpenter Hazelwood law firm, the same attorneys involved in the constitutionality appeal of that case (LC2007-000598, decided October 2, 2008) as applied solely to the Troon Village HOA: “Thus, the legislature’s delegation of authority to the Department violates the separation of powers doctrine,” and in the Merrit v. Phoenix Townhouse OAH case (No. 08F-H089004-BFS, August 4, 2008) that resulted in the Superior Court declaring OAH as unconstitutional violation of a separation of powers as applied to all HOAs in Arizona (LC 2008-000740, October 23, 2008).  The Merrit HOA argument was based on Judge Downie’s ruling in the Waugaman superior court appeal.  (Disgracefully, the Merrit  case was a default decision with nobody coming to defend the statute, including  DFBLS, the Attorney General, who did an about face in the case, and the Legislature).

 The persistent role of the  Carpenter Hazelwood law firm in pursuing these unconstitutionality challenges raised the question of who were they fighting for?  The two separate HOAs?  Or, all the HOAs in Arizona?  This objective of “all HOAs” reflects the interests of the CAI national lobbying trade group: that of keeping constitutional protections away from homeowners in HOAs. 

 For the complete document, and the appointment of these CAI attorneys as Judge Pro Tems,  see Waugaman-Carpenter.

status: AZ OAH no longer in operation

At the start of this year, the OAH was prohibited from hearing HOA disputes.

Please address any problems or general questions to my email:  info@pvtgov.org.

I do not accept such concerns here.  Join the email list at hoanet-subscribe@yahoogroups.com to make your concerns available to others.

No unethical conduct by judge in constitutionality case

My response letter to Commission’s finding of ethical behavior (For background info see The State of Arizona will not protect buyers of HOA homes!)

View letter at 

Actions by AZ judge in constitutionality case found ethical

Judicial bias in HOA cases

Political scientists and public opinion organizations are looking to the judiciary to fulfill its constitutional role as a separate and equal branch of government, and to establish justice in HOA-land.  Others argue that the independence of the judiciary, in general, has been tainted over the years, and justice with respect to legal principles is tainted by the personal preferences of the judges themselves.  Why else is there the highly controversial debate on the selection of new Supreme Court Justices?  America is no longer a land under the rule of law, but a land under the rule of the men in black and their political leanings; where the doctrine of stare decisis, itself, falls victim to the preferences of the judges.

 

Stare decisis is the rule of law that imports the aura of legitimacy on the judicial process by holding future decisions to be bound by prior decisions that serve as “precedent.”  The doctrine of stare decisis

Based on the above, it is not too difficult to understand why court decisions have, in general, favored  homeowners associations over homeowners.  State public policy is replete with HOA protectionism, which has an influence on the judges, and there’s a long history of HOA favorable decisions to serve as precedent.  The negative precedent history is a direct result of the adhesion nature of the HOA governing documents and the state laws that deny, by commission and omission, homeowner protections.  In short, no wonder the odds are against the restoration of individual liberties and freedoms.

 

For more, see Judicial precedent and HOA bias.

Judicial transparency and the public trust

A complaint was filed against Maricopa County Superior Court Judge McMurdie for his conduct subsequent to his default decision in Phoenix Townhouse HOA v. AZ Off. Admin. Hearings [OAH], LC 2008-000740 — the decision holding the statute that allowed for the OAH adjudication of HOA disputes to be unconstitutional. 

 

It is inconceivable that my submitted information would be summarily dismissed, kept from the public, not acted upon, and the default decision allowed to stand.  A decision that would be declared void ab initio based on my submitted materials, and where Judge McMurdie had the power to so act under Ariz. R. Civ. P. 60(c):  “This rule does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 

The Code of Judicial Conduct holds “that judges, individually and collectively, must respect and honor the judicial office as a public trust” and  that “a judge shall uphold the integrity and independence of the judiciary.“    For the Court to do justice and maintain its integrity, my “letter of fact” and supporting materials must be made part of the case. There must be transparency if the judiciary is to justify its claim to independence in upholding the laws of the land.