OAH 08F-H089001-BFS: failing to understand adjudication

September 30, 2008

 

Once more I’ve witnessed a Pro Per failing to understand what adjudication is all about.  I cannot over emphasize the following paragraph.

 

Adjudication, whether civil court, OAH, or ADR,  is not a social club committee meeting.  There are rules that must be followed.  “Adjudication” is not the judge cheering the Pro Per with “Right on!”, but an evaluation after hearing both sides.  Empty allegations carry no weight.  Authoritative evidence is needed — statutes, governing documents, sworn witnesses and pertinent dispute related documents like emails, notices, etc.  This is precisely why the parties are informed that the decision is based “on the preponderance of the evidence.  Get the evidence or don’t file a complaint!

 

IN OAH 08F-08901, a question of interpretation was raised involving the exceptions to open meeting requirements — ARS 33-1804(A) pertaining to pending litigation, employees and attorney advice.  These terms are not defined within the governing documents nor Title 33, Ch. 9 and 16, the only 2 chapters allowed to be heard by OAH.  Consequently, civil court is required.  In this case, however, the definitions were not challenged until the last minute of the hearing when the Pro Per asked the ALJ how his complaint fell under one of the exceptions. The ALJ, after already deciding against the homeowners, replied, “I’m not really in a position to answer that  question.”  Grounds for an appeal.

 

A second major issue was the interpretation of the ADR provisions within the Declaration. Did they apply to this complaint?  The ALJ read the documents involved in the closed meeting, the subject of the complaint, in private, and made his decision that the closed meeting was not a violation.  The Pro Per failed to present any substantive argument that his understanding of grammar was faulty. That the ADR provision only applied to construction issues.

 

Do not waste your time filing a complaint or any civil action if you do not plan to diligently heed my warnings in the above second paragraph.

 

 


Year 2 AZ OAH cases on HOA disputes – homeowners still win 43%

September 1, 2008

As a result of the efforts of two homeowners, Bill Brown and Walt Kearns, Arizona HOA case statistics for the first two years (22 months) have been developed based on 59 cases, of which 42 were decided by the Administrative Law Judges ( 4 split decisions were ignored).  In spite of some minor differences in views, the analysis showed some 43% of the cases were won by the petitioner, the homeowner.  (18 decisions for the homeowner; 24 for the HOA).

 

This result is consistent with the results found in September 2007 by this writer based on the first-year cases (32 decisions), which showed a 42% win percentage by homeowners.  (See https://azhoaoah.wordpress.com/2007/09/24/first-year-oah-statistics-on-hoa-cases/).

 

In Arizona in 2005, a bill to permit Justice of the Peace Courts to hear HOA disputes was defeated by claims by CAI attorney lobbyists of a huge flood of complaints that would destroy the effectiveness of the JP courts.  This was a dramatic and marked reversal of the CAI position, maintained for years, that only 5% of the HOAs were bad, so why make new laws.  It appears that CAI, Community Associations Institute, that national lobbying trade group proclaimed as the experts on homeowner associations matters, got it all wrong.  What else are the CAI attorneys telling the legislators that’s has no basis in fact?

 

In 2006, the bill to authorize OAH resolution of HOA disputes had a tough battle — Chairmen of both the Senate and House attempted to not hear the bill, based on their rights as Chairman of the Rules committee.  They failed and the bill was overwhelmingly passed by the Arizona Senate and House.

 

Just this past week, Senator Obama stated the problem with the American political system quite succinctly.  Referring to current political attitudes as “You’re on your own“, he said,

 

Ours is a promise that says government cannot solve all our problems, but what it should do is that which we cannot do for ourselves – protect us from harm . . . .  Our government should work for us, not against us. It should help us, not hurt us.

 

There are more necessary reforms to the OAH procedures.  The CAI attorneys have challenged the constitutional rights for OAH to adjudicate HOA disputes.  They have attempted to turn OAH into a civil court with its strict Rules of Civil Procedure.  The OAH cannot hear disputes raising questions of constitutional issues, but more importantly, it is restricted by the enabling act from applying the Restatement (Third) of Laws, Property: Servitudes to these disputes. Yet,  HOAs owe their power and oppression based on this common law source.  For example, Chapter 3 deals with the Validity of Covenants, and Chapter 6 deals with HOA structure, functions, etc.

 

When will the legislators, the courts, the media, and the various public interest nonprofits going to wake up and face the reality before them?

 


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