Sunday, July 23, 2017

Why We Need Litigation

Wake County has changed my caseload. Before moving, I almost never litigated for or against homeowners' associations. I now have a number of ongoing cases on both sides of HOA disputes. Anyone who has been to Wake County will know why: HOAs are everywhere here.
In 1998, North Carolina enacted Chapter 47F of the General Statutes to regulate HOAs. 47F controls the powers of a HOA, what records a HOA must release, what a HOA's bylaws and declaration must include, and several other important aspects of HOAs. 47F has been law for nearly 20 years. But there is almost no case law interpreting 47F.
This is alarming.

Because of our British origins, the American legal system is a common law system. This means our law is primarily interpreted by the decisions of our courts. A plaintiff sues a defendant over a law, a court decides the case, and the court's decision becomes part of our law. Every other court has to follow that court's decision, unless the decision is overturned by the same court or a higher court. Cases, therefore, a very important to our legal system. If we don't have cases, we only have statutes and (slightly) educated guesses about what the statutes mean.
So reading 47F and see little to no cases troubles me. It means that when I read that a HOA can start or intervene in litigation or administrative decisions "affecting" the HOA, I want to ask all sorts of questions. How close does the relationship have to be? Does the HOA have to be directly affected? What if the case would, in the aggregate, affect the HOA? What if two homeowners sue each other and the HOA wants to get involved? I can guess at the answers to these questions, but I don't know the answers to these questions.
And that's why we need more litigation, not less.

Our legal system depends on cases. Cases make our law. Without cases in public courts with public decisions, our law stays ambiguous. Our law cannot progress without cases.
Since the 1980s, our federal courts have encouraged arbitration (hiring a private party to judge your case outside of court). Since 1991, North Carolina has required mediation (hiring a private party to help you settle your case) in at least some cases. Arbitration and mediation have only grown since then. If you have an Apple or Google phone, a Windows PC, or an Amazon account, you are almost certainly in at least one contract requiring arbitration. Proponents of mediation and arbitration argue they save time and, hopefully, money. As the NC Administrative Office of the Courts puts it: "The [mediation] program was charged with facilitating the settlement of superior court civil actions and with making civil litigation more economical, efficient, and satisfactory to litigants and the public." What's wrong with letting folks resolve cases quicker, cheaper, and on their own terms?
Not going to court means we don't have any case law. Arbitration decisions aren't binding on future courts or arbitrators. Mediators never even come to a binding decision. So our law cannot progress. Going to trial make be expensive and slow, but arbitration and mediation aren't the solution. Increased arbitration and mediation hands our common law system over to unelected, unaccountable panels of experts with no responsibility to follow their own decisions. It makes our common law system and civil law system.
The common law has proven itself to be one of the most (if not the most) enduring legal systems of all time. The common law has given us our rights and privileges. If we want to keep our common law, we must have cases. To do that, we must turn from arbitration and mediation and to trying cases. We may (almost certinaly do) need to expedite our legal process, but that's not a reason to abandon our litigation. Our law is at stake and we must defend it.

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