HOA Nut House

No clue if the members could be sued in this instance, though it seems like people can be sued for almost anything. Some states, like the one I live in, require that HOA's carry liability insurance. Thats the first thing to check.

You should look at your state's statutes, as to who can "sue" in an association. Usually a member, as well as an association, can sue for violation of the covenants. There may be an arbitration or mediation requirement. Additionally, a member can (in some states) file a "derivative action" on behalf of the other members. You do not have to have the other members as plaintiffs. In corporate law, this is known as a "shareholder's derivative suit". And as the poster above states, many statutes require associations to carry liability insurance. That is another basis for a claim.

No surprise that the developer is concerned about director's D&O insurance. He's pretty stupid though, if he thinks that relieves him of personal liability for willful violation of the governing documents or of state law. D&O only covers negligence. It is possible you could go after the developer or individual directors who refuse to obtain liability insurance.

You should not wait until an accident occurs. You should demand by certified letter that the Board obtain liability insurance. You will need proof that the directors knew of the problem and willfully refused to correct it. If they do not, then you could file a claim for violation of the statutes (if applicable) and governing docs. The remedy requested could be injunctive relief - the court could force the association (and the directors) to obtain liability insurance.

What you describe is very serious. YES, the membership can be liable to a party injured on association property, under certain circumstances.

Disagree with this poster.....since there is this legal fiction of corporate personhood, and the 'roads' owned by the corporation, there usually is language also in the documents, and case law to support it, that the owners are indemnified for any personal liability claims, unless of course it would be a personal, willful act against another affecting another's life or property. The corporation owns the roads as common area, so any liability claims are pretty much restricted to the corporations then liability.

And usually also there is a provision, however, that any 'casuality' or 'liability' policies purchased are to be done so with 'owner input' and 'consent' since the costs for such policies are high, and also vary in amounts of coverage and deductions. And also provides that these policies can be held also covering the 'owners'....since it is the owners or their guests most likely who will be using the roads to begin with, not the general public on most of the communities with 'private' streets.

Attorneys routinely 'recommend' and use 'scare tactics' in warnings about purchasing both D&O policies, and common area 'liability' policies, as guess who collects the most in actions brought under these policies, and who are also 'protected' for their acts and omissions as either 'agents' or 'principals' also in these communities? The D&O coverage that was included for most older communities was for bond coverage...and there was a reason for that, indemnification under bonds requires background checks and 'indemnification' proceedings by the courts to determine 'willfulness' prior to any sums or coverages being expended, and protect the Association assets much better.
Insurance no so, as the insurer can come in and accept the claim, the attorney's then can run wild running up fees and costs, and then the insurer can then 'back out' if in any way the insurer determines 'willfulness.' And in 'acts and omissions' suits then you, as a member, are actually paying the costs of both sides of suit through dues payments for the Board's coverage.....

The insurance and legal industry lobbied for those 'mandatory' insurance statutes, for their industries profits primarily, since bonds and the sums provided are monitored much more strictly by the bond companies. While maybe insurance was a good idea, it is now being abused and actions initiated by the management concerns and attorneys to then clean up on litigation.

And if there were an accident on the private roads, the personal auto insurance of those involved would be the 'remedy' for any loss or damage involved.....and would assume that since these are gravel roads you are well outside city limits, so other than the actual owners or guests, and county service providers, who else would be using those roads anyway?

I am not talking liability of individual members! I am talking about corporate liability, which would land squarely on the shoulders of the members, if the association does not have liability insurance.

In this state, adequate liability and casualty insurance is required by state statute. The association is certainly NOT indemnified against liability for negligence. ANd if the association does not have insurance, just who exactly do you think is going to be responisble for any damages? Sure as hell not the individual directors.

To my knowledge, it is not the statute in most states, but the governing documents, that require D&O insurance. I can't believe associations routinely have $1 million policies or more. You ARE right that the insurance company will back out once they determine the liability may not be the result of negligent, but willful acts. To have a $1 million policy for D&O is a colossal waste of money.

Insurance companies have also pushed employee theft policies to take the place of fidelity bonds - another mistake. Many docs DO require a fidelity bond, to cover theft and fraud by directors. Given the general nature of associations in this country, I would advise forgetting about large D&O policies and beef up the bonds.

If an accident happened on private roads, that was a result of association negligence, the personal auto insurance would NOT cover the damages.

I am not entirely sure why you think attorneys are responsible for virtually everything, but you are entitled to your opinion.

Let's just say on a 'private' road the odds would be slim that any 'outsider' other than someone living in the community or guest could be 'harmed' on a gravel road, and if there is an accident odds are would be between two individuals and yes, auto insurance does insure the drivers no matter whether they are public or private roads.

The point was, bonds are better protection for D&O actions since background checks are needed and procedures undertaken prior to extending bond coverage, and 'liability' for the 'roads' which this poster was concerned with, due to their 'private' nature, and most states 'mandating' now private automobile insurance coverage (which is also quetionable, although some states now due allow even 'bond' coverage for that), and the fact that only residents or their guests using it by and large, the 'risks' for such an occurrence would be low.

And 'corporate entities' were created primarily to 'protect' individuals from personal liability, which is why this form of 'ownership' of property and assets became so attractive to begin with. The 'corporate' entity would be the 'proper' party in any such slim occurrence....and that is why they are so totally ridiculous, any party so damaged (which most likely would be another owner), is really then 'suing himself,' as it is his assets paying on both sides of any such action.

And again, not all what the founders intended for land ownership AT ALL.

Do you not think that homeowners have sued their associations?

Do you not think a guest of a homeowner has never sued an association?

And do you not think that even if auto insurance covered an accident that was caused by an association's negligence, it would go after the association if the association's negligence caused the accident? Most insurance policies contain a subrogation provision that allows the insurance company to bring an action against a tortfeasor who imposed a loss upon an insured for which the insurance company had to pay money in compensation.

You completely missed my point, clearly, re liability. Yes, the Association would be the defendant. And the Association would be responsible for any damages that were awarded.
And how do you think the Association would pay for those damages? The VERY same way the Associations pay for any such liability. Assess the homeowners.

What about this is so difficult for you to understand?

Would YOU not carry insurance? I wouldn't. And even if you individually chose not to carry insurance, is it proper to expose every individual in an association to the risk of having to pay for the association's debt? There is a legitimate reason for some statutes. And this is one of them.

I already explained my position on D&O. I think a large D&O policy is ludicrous. I don't know of any state law requiring it. Developers write the docs, so I understand why association docs do.

Actually, it is the other way around in many older communities. Most of the older documents call for bond coverage, since these are non-profits and to protect the assets.....also, only provision coverage was allowed, and any director who was deemed willful and negligent, would have to repay any damages to any party so damaged. The insurance indemnification statutes actually are in most states now, due to the lobbying efforts of the HOA attorneys and insurers....with HOA attorneys and their association affiliated members actually brokering these policies for their own coverage in order to reduce their own 'costs of doing business' and leaving the Association and it's membership paying for their 'acts and omissions.' That is the entire point of what is going on in these communities, but I guess you missed that.

And most Board's not given any 'rights' to unilaterally special assess the members at all, not without vote. And the 'proper' party for 'gross negligence' of which you describe in any such action would not be the Association at all, but the Board, so yes it would be 'difficult' for members to then be personally 'sued' for just such an occurrence, other than any Board member or members who 'willfully' failed to address clear and needed 'maintenance,' to reduce any 'hazard.'

'Negligence' and 'damage' are acts done by a person or persons directly.....and since although 'corporate personhood' is a known 'fiction,' however at this time given 'weight' with many of the courts nonetheless, it would be an either/or proposition.....either the 'responsible' party in such an action would be the Board in failure to carry out it's duties, or each individual member whose 'property' is paying for Board coverage through, hopefully, a bond and NOT insurance for just such reason......since an 'act or omission' or 'theft' would fall within most bonds' provisions, and even if insurance, the insurer's action under subrogation if it would sould have to pay out on any claim and sue for recovery would also be against the Board either corporately or personally, and not the owners at all.

So again, we agree to disagree....

Ok, to clear some things up.

Where are you getting your "facts" about "older documents"? I am most curious. Many current documents require fidelity bonds. These bonds cover willful misdeeds and theft by employers, much as the employee theft provisions but there are differences.

Association docs should NOT require indemnification (for negligent acts) of all "agents" of the association, but many do. That, in my opinion, is criminal.

As to your comment about the Board's right to unilaterally assess? MANY documents DO provide for this, so again, please tell me where you are getting your "facts".
Moreover, at least in this state, because statute requires associations to maintain the common areas, one interpretation (that held by many association attorneys) is that any provision requiring a membership vote on special assessments is unenforceable if that assessment is necessary for the maintenance and preservation of the common property.
I am in the minority in believing this - court rulings in this area have not, as some attorneys suggest, directly stated that such a provision is unenforceable. However, I could well see that direction were it litigated.

Furthermore, I do not think you understand the meaning of "Damages". I am referring to "money damages" or how a person has been harmed. That mos certainly does NOT have to be "direct". NEGLIGENCE can be an omission or failure to act!! I don't know where you learned your "law", but you are very very wrong.

For a negligence claim, the insurance would MOST CERTAINLY sue for recovery against the ASSOCIATION and NOT the individual board members or the individual members.
We were talking about LIABILITY insurance in the event of NEGLIGENCE by the ASSOCIATION.

God, talk about confusing apples and oranges.

An "act" or "omission" that is determined to be negligence by the association would most certainly be the responsibility of the association.

The association would then have two choices if a judgment were to be levied against it:
1. Assess the members, as I said; or
2. Don't assess the members, and the judgment holder will take the common property which, in the case of HOAs that have private roads, can be considerable.

IF INSURANCE files a subrogation claim, again, it would be AGAINST THE ASSOCIATION. And then, the association would be in the SAME SITUATION - see #1 and #2.

I do not know where you got YOUR license to practice law, but I heartily recommend you do not give legal advice. You are dead wrong.

"JAKE"

CORRECTION:
I am in the minority in believing this - court rulings in this area have not, as some attorneys suggest, directly stated that such a provision is unenforceable. However, I could well see that direction were it litigated.

I didn't finish that thought. I am in the minority in believing that boards can NOT unilaterally levy special assessments if the docs expressly state otherwise; I do not believe the courts have directly ruled on this point. Although, as I said above, I could see that it the courts have come close to saying this.

And seizure of property to collect on a judgment would most certainly fall into this category.

There are clearly defined duties of the Board in both the Declaration and Bylaws, so D&O policies or bonds while 'paid for' by the assessments, actually 'cover' the Board and their 'agents,' many of which are actually acting in these communities as 'principals in fact.'

And it would hold that HOA attorneys, who do want total control of these communities through the Boards in their 'mission statement', would 'claim' that the contractual provisions for 'voting' would be unenforceable for needed or necessary maintenance, since they also are affiliated through their association with the vendors providing those services, again, in order to 'steal' property without 'due process of law' from the owners. They were created as non-profits, and as such with strict accountability in many of them for sums expended, and no 'levying' powers other than CPI increases for needed maintenance.

And yes, some of the 'newer' documents do provide the power to special assess without vote, also 'created' documents by these HOA attorneys, to foster their agendas either through state statutes, or in the new created and over the top 'tax provisions' and 'land use restrictions,' to freely manipulate the revenue.

And although these quite clearly have are and have become 'mini-me' governments since they were state created to begin with, and the state's have been upholding the 'corporate' rather than 'private property' interests, 'contract law doctrine' states that a 'contract can only be amended by the parties to the contract, and will stand, barring any (constitutional) federal or state mandate." (A law with the words 'must' or 'shall').

And again disagree, any insurance subrogation claim, if it is for a Board required duty or due to damages incurred due to negligence of the Board to adequately maintain the common areas, would again, be against the Board in a 'failure' to perform their functions, and not the corporate Association at all.

As I said, between this exchange and the earlier one in which the claim was made that securing 'unencumbered' land in this country was not the entire 'mission' of the founding fathers to escape the sovereign 'takings' which had been going on in England which drove them from that country to begin with, as I said, I am concerned about the law school curriculum right and just what is being 'taught' with respect to the Constitution and the founders 'intent' behind it, which is how every contract is to be weighed.....with a view of the 'intent,' along with the actual language and terms, and even the circumstances surrounding entering into it.

NO.
"And again disagree, any insurance subrogation claim, if it is for a Board required duty or due to damages incurred due to negligence of the Board to adequately maintain the common areas, would again, be against the Board in a 'failure' to perform their functions, and not the corporate Association at all."

This is incorrect. The association can and is most certainly able to be sued for negligence. An insurance company can most certainly do so, and would in this circumstance.

The "Board" is IMMUNIZED from negligence, or maybe you missed that.

PLEASE DO NOT GIVE LEGAL ADVICE, if you are not licensed to practice law - and from you posts, it is abundantly evident that you are not.

Your understanding of the law is grossly inadequate, so I truly think you are not one to judge the law school curriculum.

The Board acts ON BEHALF of the association, under corporate law. The individual board members are NOT liable for acts of 'simple' negligence.

I don't know how many times I need to say this. Only if the Association's lawyer could PROVE that the individual board member's actions were willful or deliberate would the association not be liable.

If you think the insurance company would file actions against the individual negligent board members, you are sadly mistaken -- unless, of course, the individuals are named as co-defendants with the Association. That is a plausible course, especially if there might be willful misconduct that can be proved.

But you suggest that an insurance comany could not go after the association in such a situation. That is DEAD WRONG.

I can't conceive of where you get some of your beliefs about the law. And that you would hold yourself out as knowing the law, despite evidence to the contrary, is remarkable.
If you ARE licensed in law, and give this kind of advice, you would have committed malpractice. My guess, and also based on what you have already stated, is that you do NOT have a license to practice law. Furthermore, with what you have stated here, you would never get one.

Just so I don't missate the burden of proof...

If an insurance company were to sue the Association, the burden of proof is on the PLAINTIFF insurance company to show the Board of Directors was negligent. I realized what I said is not entirely accurate as stated.

The Association could then show that the individual board members were liable if it so chose, by proving that that their actions were willful or grossly negligent.

That is what I meant to say.

Regardless, the association most certainly CAN be liable for negligence.

And that includes an action by an insurance company attempting to recover monies it paid out.

You can disagree all you want, but you are wrong on the law.

Any Board of Directors that refuses to obtain liability insurance exposes ALL the members to financial loss, in a variety of ways that I can think of. Your suggestion that requirements to obtain such insurance are somehow unnecessary and some conspiracy by lawyers is not only wrong, it is irresponsible.

And you might want to couch your opinions as your opinions. Because they most surely are not the law, and they are bad "advice".

Well, per the Constitution and Arizona's state constitution, no 'privileges or immunities' are allowed under it, nor is anyone at all 'indemnified' for any damages against the persons or property of another. So while all these scenarios are great, and 'what ifs' and such, it would also boil down to the 'damages' incurred, and the case or claim against the actual 'party' responsible for those damages, with based on negligence, willful misconduct, whatever.

But the original question had to do with a gravel road, and the 'scare' tactic used, and 'suggestion' to this owner to file an injunction to get the Board to so comply for 'liability' coverage. And my entire point was, if you will reread it the original post, that an 'auto accident' were to happen, which is the major liability for any road, be it state, county, municipal, or private.....that is what the law 'mandating' personal liability auto insurance was to cover amongst drivers. And other than 'gross negligence' on the part of upkeep of the road itself, could not see how any 'claim' against either the Board or Association would hold any weight at all.....but then again, with the 'litigation mill' in this country, attorneys will bring suit over just about anything, and against just about anyone, whether warranted or credible or not. Sure they should probably cover them with a limited policy, but getting together with other concerned owners and 'en masse' addressing the Board or signing a petition would be a little better it would appear based upon what the real difficulty is, rather than sending a demand letter, and then following it up with an injunction if the letter does not work.

It is 'legal advice' such as was made to the initial comment, recommending an 'injunction' be filed against the Board over these roads if necessary, and then the scare tactics such as those that were used, that actually contributes, again, to what is going on in these communities, since there would have to be some type of 'personal' act involved for each and every homeowner to be named whick resulted in 'proveable' responsibility and damages, in the remote possibility that should occur.

And this entire question seemed a little strange - obviously a development outside city limits....with miles and miles of unpaved roads, which do not belong to the county nor if they were 'private' roads for this development are not 'surfaced roads,' with indemnified mining rights for easement land, the entire scenario seems mighty strange to begin with.

And I still maintain it would be unlikely that the individual property owners themselves could be even reasonably held liable for such an unlikely event, on a road used mainly, it would appear, by the resident and owners who, in most states by law, must carry personal liability insurance, and for which it would be a stretch that a 'road itself' owned by the corporate entity was responsible, and if in such event, as is now the practice in tort actions, would be relegated to a 'percentage' or 'portion' of the determination based on it's relevance to the proveable damages incurred.

The response did seem a 'scare tactic' was the entire point.

Would you show me the Arizona constitutional provision that prohibits indemnification for negligence, that would apply to board members? I would like to see it.

I did not EVER say the individual owners would be held liable, did I?

What I said is that if something happened on association property and the association were held liable, without insurance the members would be in the position of coughing up money in the form of assessments or losing the common property (which is owned by the association).

Whether this is likely or not, I don't know. How likely is it that someone would trip and fall on my property from something I may have "negligently" created? Not real likely. But that does not mean I do not carry liability insurance for such a possibility.

I was the one who suggested the possibility of an injunction, as one of the possible remedies to force the board to comply with its covenants. This is not a scare tactic.
Perhaps this individual should get the advice of a lawyer *off* line. My guess is that it would be no different. Now you may think that all lawyers are in some conspiracy to push liability insurance, but you would be wrong. That is one of the most absurd things I think I have ever heard.

The homeowners are free, of course, to do nothing. And nothing bad may happen. And then again, something bad might happen. And if it does, would they be liable? NO, not for personally. But the association MAY be liable and association liability WILL affect the homeowners. Although associations are "corporations", they do not operate like most corporations. How many shareholders can be forced by a corporation to dish out money? Um, well, um..

How many shareholders will lose access to real property if the corporation has a judgment against it? Um, well,...

And as to even "shareholder" liability in a *real* corporation, there is such a thing as piercing the corporate veil. That is usually a rather different circumstance, however.

I have had enough of this. It is a waste of my time. You seem to think you know the law better than anyone else, and are adamant about stating so. You even believe you know what a law school curriculum should be, based on your alleged 8 years as a paralegal. Okay.

I can only hope that nobody who read these boards takes ANY advice suggested here, but instead seeks the advice of counsel. Of course, that is true for any website.

And I certainly hope that nobody takes your advice, notwithstanding your *vast* experience in the law.

ON SECOND THOUGHT, forget about showing me the AZ Constitution. I have had enough of this ridiculous debating with you. I don't believe that the AZ constitution would prohibit what amounts to the "business judgment rule." If it does, then it is very unique. However, based on your your other beliefs about the law, I suspect you are wrong about this as well.
Of course, even if it did preclude this type of indemnification for negligence, the association could still be held liable for negligence, so that doens't help your argument.

And I am not going to waste any more time arguing with you. Your arrogance is boundless - your belief that you know the Constitution and the law better than law schools, the bar association (which has input into law curriculums), and probably all lawyers (except one former judge you keep mentioning) is pretty amazing. I don't assume that kind of expert knowledge on the law. And I daresay I have more reason to do so.

So do not pay your taxes. Insist that the loss of your home was an unconstitutional "taking" (my guess is that it had nothing to do with that). Do not get liability insurance for property you own, or demand that your association obtain insurance for common property. Don't ever take the advice of an attorney, since you know that they all operate out of greed and selfish motives.
Go ahead and follow your own advice. And good luck, my dear, because you will need it.

You can pull the Arizona Constitution up yourself by just doing a website, and 'no privileges or immunities' means just that, no law providing any 'privilege or immunity' to ANY entity is 'legal' according to the Arizona Constitution itself.

It is 'common law' that NO ONE, corporate or otherwise, can be automatically indemnified by ANY state law or statute for any damage to another's property or person, no matter what the 'mitigating' circumstances, simple negligence, willful misconduct, etc. The 'mitigating' circumstances will determine whether the 'act' is a under the 'civil' law, or a 'criminal' act.....but absolutely NO ONE can be indemnified for their actions if they cause harm to another's person or property. "Law over Rules....' no matter WHAT case law supports the 'business judgment rule,' that is 'basic' civil and criminal law 'doctrine.' We are all responsible for what we do whether in a 'corporate' form or personally....if it results in any 'proveable' damage to another person. Period.

You continue to believe that just because a 'law' is on the books, or corporate entities lobbied for it, it is a valid and Constitutional law....even if the Constitution itself precludes it, on the state or federal level.

Read the Arizona Constitution yourself, no statute or contractual provision can indemnify anyone for any personal physical harm or property damage....that is the entire basis of our legal 'system', civil and 'inalienable rights' in this country, and why the civil 'common law' courts are there to begin with....it's just such 'unconstitutional' 'extension' of these purported 'privileges and immunities' over other's rights that have turned this country now upside down.

And as I said, with just such positions as have occurred in these exchanges, can definitely see what transpired in the Glassel case, especially after having experienced much of the same in the simple contractual breach I was attempting to redress, and with these beliefs and extended 'protections' the harassment and abuse which then also must have occurred after that 'litigation abuse.'

And I'm not talking 'freedom of speech' or 'public policy' issues or 'loss of business,' because that is quite subjective, especially since in the HOA realm, this is a 'public policy' issue if ever there was one, I'm talking proveable damage of physical property loss, and emotional or physical harm....that is, of course, what our entire civil and criminal justice system was to be there for to begin with, and in upholding the Bill of Rights freedoms for the PERSONS, actual citizens, of this country....

Basic 'human rights' issues, not 'jobs and the economy' or 'corporate' personhoods....

I rest my case, this type of property ownership is fraught with 'loss' of property, rather than 'preserving and protecting' property in it's current form, and sometimes the Constitutional breach so great, you cannot 'fix' them. This was not the intent for land ownership in this country, that much is very clear.

As I said, you are more than free to follow your own legal advice. I just hope others do not.

It is one thing to believe that a law needs changing. It is quite another to make up your own law.

Here is one example, of probably hundreds:
"It is 'common law' that NO ONE, corporate or otherwise, can be automatically indemnified by ANY state law or statute for any damage to another's property or person, no matter what the 'mitigating' circumstances, simple negligence, willful misconduct, etc. The 'mitigating' circumstances will determine whether the 'act' is a under the 'civil' law, or a 'criminal' act.....but absolutely NO ONE can be indemnified for their actions if they cause harm to another's person or property. "Law over Rules....' no matter WHAT case law supports the 'business judgment rule,' that is 'basic' civil and criminal law 'doctrine.' We are all responsible for what we do whether in a 'corporate' form or personally....if it results in any 'proveable' damage to another person. Period."

This comment of yours is utter bullshit. To quote Raunstar, "I advocate for homeowners, not stupidity." That sums it up. Good night.

My goodness! Anonymous is arguing with Anonymous, and with the exception of one "Jake" you can't tell who is saying what. As a result, somebody approached me and asked if I was one of those arguing.

I have no idea why the suspicion fell on me, but I hereby declare that not only have I not participated in the argument(s) above, I haven't even read this thread and don't know what it is about.

Mika Brainy
Tucson, AZ

I am the one not wishing to rewrite history, overturn 200 years of constitutional law, and the entire judicial system. While I do not agree with every law that exists, I am not so irrational as deny it exists and make up my own.

JAKE

You need only do a web search, and his 'critique' of the 'business of law' and his experience in the Arizona judiciary, and his book on the 'injustice' which goes on in the courtrooms due to judicial/attorney politics and collusion readily available.

Is Judge Molloy your nom de plume, or you just be prankin? A search revealed no primary source info. Eric EBAUMSWORLD

Enter Judge John F. Molloy, his book is entitiled 'The Fraternity, Lawyers and Judges in Collusion.' I did the search, and there are plenty of entries.

With the "F" I found some articles. Obviously, I have not read his book. However, from what I have quickly read on the internet, it appears that Molloy is arguing a case for accountability for judges. Not having read his book, I am not sure what he thinks that should be.

He argues that Congress and the legislatures make the law. No quarrel there. But who is to apply or interpret that law? Judges, when cases come before the courts.
And those "applications" or interpretations of the law DO become part of the body of law. I do not believe Molloy is so naive as to suggest that nobody must interpret often hatcheted and badly written statutes. Have you READ some of the statutes? And who exactly IS supposed to apply these statutes if not judges?

So how would judges be made "accountable"? Who is to BE the final "arbiter" of what a statute means? Should judges send every case back to the Legislature for clarification? If you think the courts and justice are slow now....

And then what? What about the statutes? What if you have a legislature that ignores the Constitution's "plain language"? This goes into a long and bitter argument about how the Constituition is to be read. What was the original "intent" of its authors? And was that intent always just, or applicable with today's technology? If so, how? What does "privacy" mean? Under what circumstances, if any, should free speech be limited? And whose "intent" should be applied (as we know, the "founding fathers" disagreed amongst themselves about the interpretation of the Constitution).

In our state legislature, the speaker of the House is a former lobbiest for the largest association law firm in the state (and CAI). For all practical purposes, these CAI lawyers wrote the association statutes. Some of the provisions that appear to protect homeowners are stated like this:

a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

1. Does this mean that a Board MUST hold an open, noticed meeting whenever ANY association funds are to be spent? What about basic supplies like toilet paper for the clubhouse? Or does it mean any substantial funds?

2. Does this mean a Board MUST hold an open, noticed meeting whenever a final architectural decision is made? I would think so.

Let's look at #2 for a minute. A plain reading of this statute says that an open meeting is mandatory WHENEVER a final decision is made. This rarely happens.
What if a homeowner is sued by the association for installing a certain color of roof the board does not like? And what if the only meeting minutes had nothing to do with him or his situation, but the board decided that it liked a couple of colors that they would approve. Those minutes do NOT say that those are the ONLY colors. Nowhere in the docs does it specfiy only one or two colors. But a board concluded that any colors NOT mentioned in that meeting are "automatically disapproved". They held no meeting to approve or disapprove this homeowner's choice of colors. Now they are suing him to force him to tear off that roof and put up one they like.

So did the Board comply with the law? No. Is compliance with this law a prerequisite to any lawsuit? I contend that it is. If a Board is free to ignore this provision, and "enforce" its rules without holding the required meeting, then the statute has no meaning at all. Who should be "penalized" for not following the rules here?

Ok, where do I go to find out ? The statute? No, this is all there is. I would go to case law, and see how courts have interpreted this statute. In this case, as with many such situations, there is no appellate court decision. Why? In my opinion, because association lawyers really do NOT want to establish precedent. Without precedent, they can more easily bully a homeowner into caving into their demands. WIthout precedent, they can file lawsuits in every case where a Board violates the law, and pressure homeowners into submission by the mere threat of ongoing litigation.

The statute should have been clearer. But it isn't. And this provision is much clearer than most.

When a Board sues a homeowner when the Board itself violated statute, what is the homeowners' recourse? If judges are not to "intepret" this statute, who does? The association lawyer? Who has the final "say"?

Should every case like this be sent back to the Legislature for clarification?

It is one thing to say that there is a problem with the courts. I agree that there are some horrendous decisions. Well, who decides that they are horrendous? Me?
And if I decide they are horrendous, then should I be entitled to ignore them?
Should a judge's decision be held to a vote? Chances are pretty good that in any case before a court, one party will like the decision and one party will not.
So should the offended party be able to challenge the judge's decision after all appeals are exhausted? Should they be entitled to take it to the LEgislature for a vote?

And should an individual's RIGHTS be subject to a majority vote? There are many times that a majority would deny an individual basic due process - no that is not a joke.
When a criminal defendant is not a nice person, or the crime is horrific, mob behavior can and has taken over. And the press and public may not like a judge's decision to grant this person his constitutional rights to a speedy trial, or to other due process.

How would you make judges accountable? If it were a popular vote, then do you think that judges might think twice about making an unpopular (but Constitutional) decision?

I have to actually work today, so I will leave this to you to consider. I'm sure you have the answers.

"And, to set the matter straight, per an 'expert' what occurred in my action was quite clearly a 'property theft' and 'political' determination.....it was a 'set up' from the start."

As I said, in every case, one party is going to like the decision and one party is not. You may have your "expert". The other side no doubt has its "Expert". Dueling experts.

Who is right here? You, because you say so? I have no idea what your case was about, and don't want even to get into it.

You are bitter, and maybe rightfully so, I don't know.

But I guarantee you that nearly ever party who loses in court blames the judge, the lawyers and ...well, anyone that influenced or agreed with the outcome he didn't like.

JAKE

Law loses its way

By John F. Molloy
Mar. 27, 2005 12:00 AM

When I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls.

In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact.

I charged clients by what I was able to accomplish for them. The clock did not start ticking the minute they walked through the door. advertisement

Looking back

The legal profession has evolved dramatically during my 87 years. I am a second-generation lawyer from an Irish immigrant family that settled in Yuma. My father, who passed the Bar with a fifth-grade education, ended up arguing a case before the U.S. Supreme Court during his career.

The law changed dramatically during my years in the profession. For example, when I accepted my first appointment as a Pima County judge in 1957, I saw that lawyers expected me to act more as a referee than a judge. The county court I presided over resembled a gladiator arena, with dueling lawyers jockeying for points and one-upping each other with calculated and ingenuous briefs.

That was just the beginning.

By the time I ended my 50-year career as a trial attorney, judge and president of southern Arizona's largest law firm, I no longer had confidence in the legal fraternity I had participated in and, yes, profited from.

I was the ultimate insider, but as I looked back, I felt I had to write a book about serious issues in the legal profession and the implications for clients and society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10 years in the making and has become my call to action for legal reform.

Disturbing evolution

Our Constitution intended that only elected lawmakers be permitted to create law.

Yet judges create their own law in the judicial system based on their own opinions and rulings. It's called case law, and it is churned out daily through the rulings of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then becomes case law, or legal precedent. This now happens so consistently that we've become more subject to the case rulings of judges rather than to laws made by the lawmaking bodies outlined in our Constitution.

This case-law system is a constitutional nightmare because it continuously modifies Constitutional intent. For lawyers, however, it creates endless business opportunities. That's because case law is technically complicated and requires a lawyer's expertise to guide and move you through the system.

The judicial system may begin with enacted laws, but the variations that result from a judge's application of case law all too often change the ultimate meaning.

Lawyer domination

When a lawyer puts on a robe and takes the bench, he or she is called a judge. But in reality, when judges look down from the bench they are lawyers looking upon fellow members of their fraternity. In any other area of the free-enterprise system, this would be seen as a conflict of interest.

When a lawyer takes an oath as a judge, it merely enhances the ruling class of lawyers and judges. First of all, in Maricopa and Pima counties, judges are not elected but nominated by committees of lawyers, along with concerned citizens.

How can they be expected not to be beholden to those who elevated them to the bench?

When they leave the bench, many return to large and successful law firms that leverage their names and relationships.

Business of law

The concept of "time" has been converted into enormous revenue for lawyers. The profession has adopted elaborate systems where clients are billed for a lawyer's time in six-minute increments. The paralegal profession is another brainchild of the fraternity, created as an additional tracking and revenue center. High-powered firms have departmentalized their services into separate profit centers for probate and trusts, trial, commercial, and so forth.

The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.

Bureaucratic design

Today the skill and gamesmanship of lawyers, not the truth, often determine the outcome of a case. And we lawyers love it. All the tools are there to obscure and confound. The system's process of discovery and the exclusionary rule often work to keep vital information off-limits to jurors and make cases so convoluted and complex that only lawyers and judges understand them.

The net effect has been to increase our need for lawyers, create more work for them, clog the courts and ensure that most cases never go to trial and are, instead, plea-bargained and compromised. All the while the clock is ticking, and the monster is being fed.

The sullying of American law has resulted in a fountain of money for law professionals while the common people, who are increasingly affected by lawyer-driven changes and an expensive, self-serving bureaucracy, are left confused and ill-served.

Today, it is estimated that 70 percent of low- to middle-income citizens can no longer afford the cost of justice in America. What would our Founding Fathers think?

This devolution of lawmaking by the judiciary has been subtle, taking place incrementally over decades. But today, it's engrained in our legal system, and few even question it. But the result is clear. Individuals can no longer participate in the legal system.

It has become too complex and too expensive, all the while feeding our dependency on lawyers.

By complicating the law, lawyers have achieved the ultimate job security. Gone are the days when American courts functioned to serve justice simply and swiftly.

It is estimated that 95 million legal actions now pass through the courts annually, and the time and expense for a plaintiff or defendant in our legal system can be absolutely overwhelming.

Surely it's time to question what has happened to our justice system and to wonder if it is possible to return to a system that truly does protect us from wrongs.

John F. Molloy was elected to the Arizona Court of Appeals, where he served as chief justice and authored more than 300 appellate opinions. Molloy wrote the final Miranda decision for the Arizona Supreme Court.
----------------------------------------------------------------------------------------

Judge Molloy is clearly not stating the it is 'judicial' reform which will return our court's to the people, and 'justice' and the courts available to all.....what he is clearly calling for is a revamping of our court system itself, and removing the 'politics' from the courtrooms in the rather blatant and obvious judicial/attorney collusion going on in them, which is not serving 'justice' at all....it is making piles of cash for the attorneys - with their frivoulous motions, 'court rules' allowing both 'evidence' and 'truth' to be obliterated or withheld....

In short, what quite obviously happened in my case (with a 'hired' judge no less, moved out of my judicial 'precinct' immediately to another, and then going out an 'hiring' a judge to even protect the 'elected' official) whose offices were less than three miles from the offices of the CAI 'collection and foreclosure' counsel 'hired' by the insurer (whose 'policies' they broker) - and quite clearly what also happened in the Glassel matter, a man on whose 'property' as a 'deed simple' property the Association actually was 'trespassing' on, and then these CAI attorneys then had the audacity when he objected (of course, to their CAI affiliated landscapers) being on his property, filing an injunction against he and his wife, getting a judgement then for the legal fees and costs, and then harassing him and his wife within an inch of their lives, seizing his home through his 'fairlure' to pay his mortgage (while being threatened and harassed, and most likely his assets frozen also).

At this point, you would think, especially in Arizona with an ex-Arizona Chief Justice calling for such change, this would be first on their agenda, especially with a man now on death row due 'politically' convicted due to just such circumstances, not to mention 'negligence' in effectuating 'criminal' sanctions against any Board or their 'advisors' for 'abuse' and 'harassment' such as this.

It was clear from the article that Judge Molloy is not simply calling for 'judicial accountability' but a revamping of the court system.....and since per the Constitution the 'right to representation' was not given for 'civil common law' cases, just criminal, the place to begin would be banning attorneys from especially these HOA actions in the courtrooms as simple contract disputes, by and large. And also revamping the 95 pages worth of 'court rules' that afford 'injustice' rather than 'justice' to be served, and take a graduate level education to understand, even though the courts were meant 'for the people' not for the Bar.

And it appears if you did not get that much from this article (which was the first one which came up in the web search, and the one you were referring), along with the law school curriculum changes needed in the study of Constitutional law, it would appear reading comprehension also might need to be included.

And your 'arrogance' with these prior postings, and vicious attacks show me, as I said, that 'what goes around comes around,' and it would appear that, at least in Arizona with these CAI attorneys showing just such 'arrogance' and 'malpractice' in their both lobbying for some of these unconstitutional laws, and then harassing and abusing the homeowners in them 'under color of law,' the next 'victim' of the HOA travesties may actually be one of the 'perpetrators' themselves.

But as far as Maricopa County, much more than that needs to be done, since one of the CAI attorneys in that County has not only lobbied and 'bought' some quite clearly unconstitutional statutes through his lobbying efforts over the years by both himself, and his organization, but has even published a book as a claimed 'expert' interpreting those 'bought' statutes for the Maricopa County judiciary, and to make matters worse and even more 'prejudicial' in the Arizona courts, is now even a 'judge pro tem' on the Maricopa County bench. 'Conflict of interest' does not even begin to describe the word - a corrupted entire Maricopa County judiciary is more like it.

And it is truly strange how it is the Bar Association attorneys who 'scream' 'violation of separation of powers' when any more is made for the legislature to 'regulate' them outside the Bar, or institute effective accountability measures for both lawyers and the judges.....yet feel that 'campaing out' at the legislature, and lobbying for their 'special interest' commercial and corporate interests is not a violation of the separation of powers.

Attorneys will argue 'their case' for themselves everytime in the 'business of law'....and will even 'create' additional educational institution (such as the CAI) to continue this 'fraud upon the public' of this PAC organization, with literally hundreds of subsidiaries.

It is sad that you have such a hatred for attorneys, or for anyone, for that matter.
I am sure you would ban attorneys, for "simple contract disputes" and everything else as well. Again, no doubt you would know what should be defined as a "simple contract dispute" with your vast 8 years of paralegal experience. Just as you know everything else - the law, the Constitution and even what a law school curriculum should be!

I think you are nuts.

Well, obviously an attorney and judge with far more experience actually agrees with me, as I said 'what goes around comes around,' and at 87 years of age, his expertise and experience, and knownledge, and even 'reading comprehension' far exceeds, obviously yours.

The 'dumbing down' of America, obviously, has also occurred in the law schools.

And the Constitution, and the Arizona Constitution are not lengthy documents, so yes, I can read the actual 'law' not the'judge made law' your continue to cite as your basis for your 'legal' positions.....nor even balancing and taking into effect the 'political' corruption that goes occurs in legislative sesssions which is a well known fact...and the 'sham' public hearings which occur....

You are the one living in denial and refuse actually to acknowlege the 'true law'....not I, and a former Chief Justice agrees with me, not you....

So my 'hatred' is not for attorneys, it is for those who claim to be so, but are nothing more than 'shysters.'

And how many judges and lawyers agree with you?
ONE?

My guess is that he would be appalled if he knew what you are saying in his name. He is not nearly as vitriolic as you are.

And this is a former chief justice in ONE STATE. How many are there, exactly?

You have no clue what the law is because you cannot see beyond your hate, and refuse to have any kind of open mind whatsoever. It is a GOOD thing you are out of "the profession". No lawyer needs a paralegal as blind and unwilling to THINK as you are.

I THINK absolutely fine.....it is the 'politics' in the judiciary which are the issue here....and anyone who could continue to uphold 'policitical' judicial determinations, such as Kelo itself, or what is occuring in these HOAs, absolutely out of their minds....

No, I don't think Judge Molloy would think my 'take' on the situation is any different than his....and he is speaking 'truth' where you are speaking 'business, and property theft.'

And while all these attorneys are busy taking other people 'properties' in these communities right and left, it is interesting they would have their own in 'revocable trusts.' They will take others, but lord, 'what is mine, is mine.' Incredible.

Judge Molloy speaks truth, and it applies across the board as has been appparent in even most states throughout the nation, Arizona, California, Nevada, Florida, it really doesn't matter....it is 'property theft' and judicial/attorney collusion and 'malpractice' itself responsible.....

The federal and state Constitutions are the 'law of the land,' and unfortunately, 'buying statutes' doesn't make a law, a law, just extortion.

And anyone who has worked in the legal profession for any length of time, who has any integrity at all (which appears you do not), knows Judge Molloy is speaking truth, where, as I said, you are speaking from 'greed' and 'lies.'

Ah talk about personal attack. And I have "no integrity" for what reason? Because I disagree with you?

Don't talk to me about civility! Your hatefulness is LOUD. It is palpable - you must be one misreable person.

You are angry because you lost your house and you blame the lawyers, the judge, ;and other lawyers including me...anyone but yourself.

Since I do have a career, and I pay my taxes and mortgage, I have a home as well. My purpose in coming here was not to bicker with an irrational fanatic.

So have a good day.

"This is getting disturbingly neurotic. You've made your point. Are you new to the internet? Why clutter up these message boards saying the same thing ad naseum?"

VERY WELL PUT. This "discussion" has been a repetitious ugly tirade against attorneys and the law (as it has been for the last 200 years). Thanks for the perspective.

Even those that may agree with some of her points re HOAs would be disgusted with this.

The issue is and was 'political' corruption and collusion between judges and attorneys....Judge Molloy pointed it out, I 'experienced' it somewhat during my career also, the 'collusion' during my action was blatant and obvious and could not be missed (even two tapes from the oral arguments, which were really not necessary based upon it was over a 'proveable' assessment over-collection per the 'contract' itself, turned up missing).

1. Upon a 'Motion for Change of Judge' the judge assigned was not only 'not' my elected official judge, it was moved out of my 'precinct' and a judge pro tem assigned, to a precinct which has 'taken' through fines and other 'abuse of process' actions, more than a few homes from homeowners living in these communities.

2. The judge pro tem eventually assign's offices were less than three miles from the CAI attorney 'defending' in the action;

3. The 'judge' allowed two defense counsel in the action, in a dispute over less than $2,000 - and then turned around during the action and had the audacity to tell me that 'the clock was ticking' (after allowing two counsel's in, 'complicating' not 'simplifying' the action in an of itself, and stretched the 'rules' so far as to let the second counsel in labeling it a 'separate action' instead of the strict 'affirmative defense' that it was.

4. The 'simple' proveable action over an over-collection of assessment over a 12 year period was allowed to continue for over a year and a half (granted, during the action Katrina hit and I had six family members living there so one 'continuance' was upon my request, however, the entire action was a 'document' case itself, and 'proved' with the 'exhibits' submitted).

5. It was a 'suit of omission' to begin with....I requested documentation to support the over-collection, and none was provided per Arizona statute on member's requests. I was run around then for five full months by the management concern under attorney 'advice', with the court's using the RCP 'discovery' rules, instead of the Arizona statute to allow this also to continue ('Law over Rules' is 'doctrine'). Even when I was eventually 'granted' a Motion to Compel to get access to the 'records', that also was 'denied' by the management concern upon 'advice' of counsel, due to the fact that five day's notice wasn't 'enough' (even though this had been going on for five full months....I was at one point even threatened to security removal, over records by law I had every right to view upon 'reasonable' request, also 'upon advice of counsel.'
(This is not 'defense' this is blatant 'abuse' of process, and with the threat of security removal, actually criminal conduct).

6. I discovered 'intrinsic fraud' also as in order to continue the misrepresented fee, the required 'Notice' of the CC&R documents for our community per statute in the Recorder's office was also purposely incorrect. How do I know, after the action began, I provided the correct ones to the management concern not once, but twice. Suppose that ws also not done 'on advice of counsel' (since the CAI attorney actually is affiliated with the management concern through associated trade organizations, and get's their Association clients through their referrals).

7. I even then paid a full year's assessments during the action, which then was met with a "Motion for Summary Judgement' that was 'ludicrous' in it's 'arguments' and stated 'law' on it's face, and the 'evidence' and documents had already 'proved my case' beyond even a 'reasonable doubt.' (which, 'preponderance, or 'clear and convinceing' as you know in a small claims civil case is the standard in most states).

8. The CAI attorney then, in order to 'get' attempt to justify his Motion for Summary Judgement, then 'made up' a small amount ($96.00) in order to substantiate his Motion. Making up the sum itself was 'fraud upon the court', and when also called to the attention of the Judge at the time of the final hearing, at which point I had already submitted the bills and ledgers themselves, didn't bother to even look at