AZSC ‘improvident’ decision in Turtle Rock HOA petition

After failing to obtain the AZ SC’s order in Turtle Rock[1] on its web pages, I did  a Google search and found what appears to be a docket document dated July 3rd.[2] It contained the following order:

IT IS ORDERED  as follows:

  1. The Order granting review is vacated;
  2. The Petition for Review is denied;
  3. the Court of Appeals Opinion shall be depublished.

Scott Bales [Chief Justice]

Additional information provided is the mysterious comment (my emphasis), “* It appears to the Court that the grant of review in this case was improvident.”  Furthermore, it listed CAI as having filed an amicus curiae some 6 weeks after the petition was filed.  That explains CAI’s awareness of the SC order.

The statement of “improvident” caught my attention and I knew there was something not quite right. A Supreme Court saying, in effect, that it was fooled and made a mistake?  Admitting that I’m not a lawyer, but having read hundreds of HOA cases,  never heard of it!  And the obvious question is: How did they conclude that a mistake was made?

To make sure we understood what happened, here’s Black’s Law dictionary’s definition of “improvident”:

A judgment, decree, rule, Injunction, etc., when given or rendered without adequate consideration by the court, or without proper information as to all the circumstances affecting it, or based upon a mistaken assumption or misleading information or advice, is sometimes said to have been “improvidently” given or issued. (2nd Ed.).

Of or relating to a judgment arrived at by using misleading information or a mistaken assumption.(7th Ed.).

The only possible candidate for providing additional information to the AZSC had to come from the CAI amicus brief.  Further confusing is the docket entries of May 17 and July 3 regarding partial settlement briefs from both parties (Fisher was a Pro Se).  Since the appellate decision still stands, and Fisher won that decision, was she content and had no interest in the possibility of being overturned by the SC and so settled?  I wonder.  Many unanswered questions.

If the case was settled, why the need to depublish the appellate decision unless the settlement agreement so specified that to the SC.  If so, then we have an instance whereby the parties dictate to the judicial system to unjustifiably seal the case. This preposterous! Outrageous!

I am at a loss to understand why the SC would act in such a manner that would serve to hide violations of due process of law by HOAs. It seems to affirm the public policy, and legal doctrine, that HOAs are private contracts not subject to the 14th Amendment. And so what!

Don’t expect the Justices to come forth and explain themselves. Never will happen!  Still, I would email the Clerk of the SC urging  that the SC explain in detail why such action was taken, in apparent contraction of legal doctrine to make court decisions public.

While Rule 111 does not mandate a justification for its action, unlike in the case of a lower court sealing a decision, how did the SC justify such a decision in spite of its “substantial public importance.”

You can email Janet Johnson at  scclerk@courts.az.gov.

References

[1] Turtle Rock v. Fisher, 406 P.3d 824 (Ariz. App. Div. 1. (2017)). See AZ Supreme Court prohibits publication of decision on HOA notice of fines.

[2] https://apps.supremecourt.az.gov/aacc/appella/ASC/CV/CV170339.pdf.

Published in: on July 14, 2018 at 2:02 pm  Comments (5)  

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5 CommentsLeave a comment

  1. Checking the AZSC public info web pages, July 3rd Minutes, there is no mention of the Turtle Rock reversal of its decision to hear the Petition and its depublication order. Nothing! It was only a Google search that found what looked like the docket info on Turtle Rock (a “docket” being the history of events, including documents filed, filings, and orders or opinions.

    This reminds me of the Pinal County appellate order to seal the Maxwell & Morgan (CAI co-author of the TR brief) settlement agreement concerning lawsuit against Maxwell for aiding and abetting, disgorgement, etc. in the 2010 Desert Carmel HOA case. You won’t find any record at all, including the order to seal the case and the reasons for sealing the case, as requirement by Arizona statutes.

    To the surprise of the Court, I had a clerk’s stamped copy of the complaint, case no. and all. Still, nothing done.

  2. […] on Turtle Rock see AZ Supreme Court Prohibits publication of decision on HOA notice of fines; AZ SC ‘improvident’ decision in Turtle Rock HOA petition; and Turtle Rock CAI brief urged […]

  3. May I suggest that you try to get a copy of the CAI amicus brief. That would be the best place to start. Once we read that brief we might be able to figure out what happened.

    • CAI Central publishes its amicus briefs across the country so CAI lawyers can be advised. The timing of these updates is some time off. Does anybody know the homeowner, Lynne A. Fisher? If willing, she may provide a copy.

  4. It’s just a matter of time before this is challenged again, in other states, and at the federal level.


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