Examining the Waugaman decision in the interest of doing justice

 

I find it necessary to comment on the events and perceptions surrounding the two superior court decisions holding the Arizona OAH adjudication of HOA complaints as unconstitutional.  Both rest on the Waugaman decision. It appears that the absence of the Attorney General and Legislature defense of the statutes reflects a public policy that finds that the HOA legal scheme and statutes do no wrong or injustice to homeowners.

Analysis of Waugaman*

 

Both superior court decisions were bad law, law that did not do justice for homeowners subject to HOA abuse.  In defense of the Downie decision in Waugaman, since Merritt was decided by default without argument except for the HOA’s justification for the order, a commenter to my “AZ HOA Case Reviews” blog, identified as J. E. Smith (recall that the HOA attorney in both cases was Jason E. Smith) wrote,

 

Let’s be clear:  the rulings by Judge Downie and now by Judge McMurdie are not “faulty”.  The legislation was “faulty”.  The sponsors of this bill in the legislature failed to properly vet the bill’s constitutional validity before voting it into law.  The bill was so fundamentally in violation of the separation of powers doctrine that the Attorney General would not even attempt to defend it in the Phoenix Townhouse case.

 

Absent from this imperious statement of legislative fault, and the presumption of rock solid trial judge decisions, is any reference to the grey areas of law that the Arizona appellate court wrestled with in the underlying Hancock precedent (J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 690 P.2d 119, 1984),

 

While providing the necessary flexibility to government, the test preserves the essential goal of the separation of powers theory-i.e., preventing the concentration of the whole power of two or more branches in one body.

 

This precedent served as the guide for the  Cactus Wren (Cactus Wren Partners v. Arizona Dept. of Building & Fire Safety, 869 P.2d, 1993) decision regarding an earlier DFBLS challenge to the violation of the separation of powers doctrine.  In applying this non-exclusive four-part test of a violation, Downie begins to hold that Merritt deviates from Cactus Wren, parts 3 and 4, and rather than being open to what is called “this case is distinguished from” analysis, Downie rests her decision on Cactus.  This non-lawyer quickly recognized this “rush to judgment” approach with concerns about a made-up mind on the part of the judge.  (See the Waugaman Decision).

 

For example, in considering the third test concerning the legislature’s intent, Downie quickly moves to regulatory concerns and does not address the legislature’s intent behind the statute.  The only occurrence of legislative intent is in the judge’s decision where she used the HOA attorney’s argument.  In the underlying Hancock precedent, the judges wrestled with,

 

A third consideration of importance is the nature of the objective sought to be attained by the legislature.  Is the intent of the legislature to cooperate with the executive . . . or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?

 

Third, we must consider the nature of the legislature’s objective.

 

Similarly, one can argue that Downie analysis of the fourth part of the test dealing with “a blending of powers”  was faulty.   In Hancock, the court wrote,

 

We find that the limited ancillary power to construe contracts does not threaten the core functions of the courts. . . . We also believe public policy favors such a blending of powers here.

 

Interestingly, Downie, in her analysis, refers to Cactus Wren but omits the citation, “’[T]he limited ancillary power to construe contracts does not threaten the core functions of the courts.’ [citation omitted]“, which reads directly from Hancock.  However, the second sentence pertaining to public policy is not cited, although as quoted  below, Downie makes her own statement about public policy as applied here. Again, there’s a quick move to regulatory concerns with,

 

The legislature may have had valid policy reasons for devising a different system for resolving homeowner association disputes. But it appears that the Department of Fire, Building and Life Safety is a mere figurehead or ‘parking lot’ for those disputes.  

 

without any discussion of the application of the citation to Merritt.  Downie ends her analysis with, “In the final analysis, the court concurs with the following argument by the Association:”

 

It is obvious that the Downie decision is not a “slam dunk”, or a “done deal”, or an unchallengeable, “solid as a rock” decision as J. E. Smith would like everyone to believe.  It’s shaky, very shaky.  And worthy of a challenge by competent attorneys in the interest of doing justice for the people, the homeowners in HOAs.

 

 

 

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