At 11:30 a.m. today, May 22, two lawyers will each have 20 minutes to make their case before a three-judge panel as the Ahwatukee Lakes Golf Course case reaches another milestone in litigation that began five years ago.
Attorneys Tim Barnes, representing Lakes residents Linda Swain and Eileen Breslin; and Chris Baniszewski, representing course owner Wilson Gee’s companies, will square off at 11:30 a.m. in Courtroom 2 on the 2nd Floor of the headquarters of the Arizona Court of Appeals at 1501 W. Washington St., Phoenix.
At issue is Superior Court Judge John Hannah’s January 2018 decision that the covenants, conditions and restrictions governing the use of the 101-acre site, closed since 2013, required the property owner to maintain a golf course.
While Barnes’ filings in the case have detailed the iron-clad nature of the CC&Rs, Baniszewski in his written arguments has asserted that a property owner cannot be forced to build an unprofitable venture — a situation he said violates the U.S. Constitution’s prohibition of slavery.
Although the arguments before the panel come much earlier than expected, there is no set schedule for when a ruling must be handed down.
And no matter which way the panel decides the case, it is a virtual certainty the losing side will ask the state Supreme Court to weigh in.
Gee has told AFN in interviews that the site will never be a golf course again, stating he closed it in 2013 because he was losing money. Barnes’ clients disagree, and say the only reason the 18-hole executive course was in the red was because of poor management.
Gee has twice had deals with developers to turn the site into a community of homes and homeowners have twice refused to change the CC&Rs to allow that to happen.
Most recently, the attempt was by The True Life Companies, which waged an aggressive effort to get enough of the 5,600 Lakes homeowners to agree to let it build an “agrihood” with about 270 single and two-family homes, a 5-acre farm, a new building for Desert Garden Montessori, a café and other amenities.
Although True Life remains a party to the case, a lawyer for the developer said his client is neither calling any shots in the appeal nor holds “any direct or contingent interest in the outcome of the pending litigation” because Gee foreclosed on a $8.2 million note True Life signed when it bought the land in 2015.
The case will be heard today by three jurists with extensive legal experience, two of whom were appointed by Gov. Doug Ducey — Judges Randall M. Howe, Jennifer M. Perkins and David D. Weinzweig.
Howe was appointed by former Gov. Jan Brewer in 2012. In the four years before that appointment, he was an assistant U.S. attorney and deputy chief of its appellate division.
Prior to that he was chief counsel of the Criminal Appeals Section of the state Attorney General’s Office for eight years after serving 12 years as an appeals attorney in that office in the criminal and liability management sections.
He personally represented the state and federal governments in more than 400 appeals and argued 84 cases in state and federal court, including on behalf of Arizona in a criminal case before the U.S. Supreme Court.
An Arizona State University graduate, Howe has also been involved in the disability community since 1988.
Perkins was appointed to the court two years ago and practiced law in her native New Mexico after earning her law degree in 2002 from Southern Methodist University’s Dedman School of Law.
Her private practice was in complex commercial matters as well as employment and contract litigation and then clerked for a new federal judge before moving to Arizona, where she worked for the Institute for Justice litigating civil rights cases across the country. In 2009, she worked for the state Commission on Judicial Conduct for five years, involved in cases that accuse judges of misconduct.
She then re-entered private practice, though in 2015 she joined the state AG as first Assistant Solicitor General, overseeing attorney general opinions and serving as that office’s ethics counsel.
Like Perkins, Weinzweig also was appointed to the panel in 2017 and spent most of his career as an associate and then partner at Lewis and Roca, representing corporations and government entities in commercial litigation.
Recognized in Best Lawyers in America, he specialized in antitrust law and chaired the firm’s antitrust practice group. He also spent nearly seven years serving three Arizona Attorneys General, defending dozens of high-profile complex and constitutional lawsuits and appeals —including a case where he represented Arizona in attempting to overthrow the ban on capital punishment.
He cofounded his own firm eventually.
His official biography describes him as the author of chapters in “leading national treatises on antitrust law, corporate in-house legal practices and consumer protection law,” and helping with “shaping and reshaping the landscape of state and federal litigation.”
In announcing his appointment, Ducey cited Weinzweig’s work in a broad range of cases, from elections and antitrust matters to consumer fraud and product liability.