The attorney for two Ahwatukee Lakes residents asked the U.S. Supreme Court to quickly reject golf course owner Wilson Gee’s request for a review of his case, calling his lawyer’s argument “a legal and historical absurdity.”
“Perhaps his actions fit our times – litigate to the bitter end, irrespective of the costs to all involved and the arguments’ absurdity,” attorney Tim Barnes said in his written response to Gee’s request. “Judicial economy alone, let alone the feigned assertion of indenture, should suffice to dispatch this case.”
Barnes urged the court to reject Gee’s bid to overturn Arizona court rulings that he must restore the golf course that he closed in 2013.
Saying the golf course would not be profitable and would cost his client millions of dollars, Gee’s lawyer has told the high court that forcing restoration was a violation for the 13th Amendment to the U.S. Constitution’s prohibition of slavery.
Barnes said Gee was arguing that “protections extended a century and a half ago to deliver African Americans from slavery under the 13th Amendment should now be bent to protect him from the extended folly of his own choices.”
“Involuntary servitude is not a legal basis for a business to be let off the hook of a poor choice it did not have to make in the first instance,” he wrote of Gee’s company.
The petition filed by attorney Daniel Maynard and Barnes’ reply will now be reviewed by some of the high court’s 500 employees who winnow some 10,000 similar petitions filed annually to maybe 80 to 100.
Of those, the justices pick maybe a dozen, looking for cases that present a substantial federal issue.
While that process – which has no deadlines – continues, Gee is scheduled to appear Oct. 22 before Superior Court Judge Theodore Campagnolo for a hearing on Barnes’ requests for sanctions for his failure to restore the course.
Campagnolo two months ago ruled that Gee was in contempt of court for ignoring Superior Court Judge John Hannah’s order to restore the course as required by the covenants, conditions and restrictions that govern the site.
Both the Arizona Court of Appeals and Supreme Court upheld Hannah’s ruling.
Campagnolo refused Maynard’s request to stay his contempt proceeding until the U.S. Supreme Court ruled, saying the slavery argument unlikely will get any traction.
Lakes homeowners Eileen Breslin and Linda Swain sued Gee in 2014 to force the restoration of the 18-hole executive course that his company, Bixby Village, bought in June 2006 for $5.6 million.
By early 2007, Gee has testified, the course started losing money as the Great Recession began impacting the local and national economy.
After failing to get agreement from homeowners on redeveloping the property, Gee ultimately shut down the course in 2013, leading to the lawsuit by Swain and Breslin and two efforts by prospective purchasers of the site to build homes on it.
The more recent of those efforts was The True Life Companies’ 2016 proposal to build Ahwatukee Farms on the site.
True Life had agreed to pay Bixby $9 million for the property if it could build about 165 homes, a private school, café and a network of nature trails on the site.
But True Life needed 51 percent of the Lakes’ 5,600 residents to agree to the plan and it waged an aggressive campaign for nearly two years to win homeowners over.
In the end, according to Barnes’ petition, True Life only got 28 percent of the homeowners to agree to the change and the company walked away from a deal with Bixby.
In retracing this history and discussing Maynard’s petition for review, Barnes writes that “nowhere in (Petitioner’s) argument appears a discussion of choices or responsibility.”
He said that from the time Bixby bought the property and throughout the community and legal fighting of the last six years, “choices existed; responsibility has been clear.”
Barnes wrote that given a chance to buy the site with the CC&Rs that governed its use “anyone might have done as former First Lady Nancy Reagan urged: ‘Just say no.’
“Instead, dollar signs in his eyes, this developer ignored Mrs. Reagan,” he continued. “Instead, for a dozen years, (Gee) has imposed himself profligately and relentlessly on our community, seeking to bend us to his will for his financial advantage. “Except now, having utterly lost, he asserts – the trial court findings to the contrary, twice affirmed – it is not financially prudent to operate a golf course.”
Barnes wrote “there can be no involuntary servitude where the choice not to serve is available” and said Gee could have chosen not to buy the course or chosen to sell it once he realized houses would never be approved by the majority of homeowners.
Noting the CC&Rs have been binding on any Lakes course owner since 1992, Barnes wrote:
“In 2013, Bixby closed and dismantled the golf course despite knowing there was a deed restriction that meant it must be a golf course. Thus, this was another opportunity of choice, where they could have sold the property before closing it.
“Instead, Bixby fenced the perimeter, drained the lakes, shut off all power, stripped the sod, and generally left the property in a dilapidated state.”
He said both True Life and Bixby have been fully aware of the deed restrictions and that “nevertheless, here we are, still litigating the matter while the property sits barren and burdensome.”
He conceded True Life and Gee have complained “the cost of rebuilding the course is high, but that is the choice Bixby and TTLC each made – a choice made free of bondage, coercion, or compulsion and nothing akin to slavery.”