A depublication order in the Turtle Rock appeal[i] of an appellate decision was issued by the AZ Supreme Court on July 3rd, which held that the HOA must provide proper notice by publishing its list of fines in order for the fine to be valid. The appellate court held that the HOA did not publish a list of fines to satisfy the legal notice requirements.[ii] These fines can then be challenged as unreasonable, as in the case of the Turtle Rock case where a $25 per day fine was found unreasonable.
This issue was a matter of general public importance and should be made public in accordance with the Rules of the Arizona Supreme Court. However, this order for depublication by the SC was a very harsh treatment of the appellate decision and is tantamount to sealing the decision from the public.
Having read several hundred opinions, both federal and state across the country, this is the first time I ever saw a depublication order. Under AZ Rules of Supreme Court,[iii] the SC can issue an opinion which is then publicized in the law journals and serves as precedent; it can issue a memorandum order that restricts the publication of the decision,[iv] making it non-binding precedent – judges do not have to follow the decision; it can essentially hide the decision from the public with a “depublication” order.
Yet, somehow, a CAI member firm, Carpenter Hazlewood, apparently has knowledge of this SC order and has published it to its followers.[v] Carpenter Hazlewood was not an attorney of record in the appellate case, who were other CAI member law firms of Goodman Law and J. Roger Wood formerly of Carpenter Hazlewood. But, there is no access on the SC’s web pages to the SC’s order of July 3rd by the public at large.
CAI tells its subscribers that Turtle Rock is no longer law, but “Although the Turtle Rock case cannot be cited in a future fine case as ‘precedent’, a judge could decide a similar future case and reach the same conclusion.” Yet, homeowner rights advocates and the public in general are left in the dark. Without knowledge of the appellate decision due to depublication, the homeowner is prevented from adopting a similar line of argument — a sorely needed winning argument in the name of justice — to use it as its complaint in a future legal action.
This decision by the SC could be seen as a restriction on my free speech rights, and that of the public in general, with respect to neutral public political content. It, as in the case of ADRE and its listing of CAI as a resource, is not content neutral but biased toward the HOA.
[i] Turtle Rock v. Fisher, Ariz. CV-17-0339-PR (2018).
[ii] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)).
[iii] AZ Rules of the Supreme Court, Rule 111.
[iv] See the Arizona Supreme Court memorandum order in Gelb v. DFBLS, CV 10-0371-PR (2011).
[v] See email of July 11, 2018 by attorney Chad Miesen, “Final Word on Turtle Rock.”