The lawyer for Ahwatukee Lakes Golf Course owner Wilson Gee’s company has asked the U.S. Supreme Court to consider “whether a court order requiring the owner of private property to operate a business on the private property violates the involuntary servitude provision of the Thirteenth Amendment of the United States Constitution.”
In a 16-page petition filed last week, attorney Daniel Maynard said that while Covenants Conditions & Restrictions for years have required property owners to maintain their property, “this case requires much more.”
“The Appellate Court’s opinion requires the owner to spend millions of dollars to build a golf course and then to operate a business on the property,” he wrote, referring to the Arizona Court of Appeals.
“Operating a business would require the owner to hire people to manage tee times, collect greens fees, maintain the tee boxes, greens and fairways, to act as the course ranger, to maintain the books and records of the business, generally manage the golf business and do all the other things necessary to operate a business. To say that the trial court is merely requiring the owner to maintain the property is completely disingenuous.
“It is requiring the property owner to do something it does not want to do and this is involuntary servitude,” Maynard wrote.
Meanwhile, Superior Court Judge Theodore Campagnolo set Oct. 22 for a hearing on what penalties he should impose on Gee’s company, ALCR, in light of the judge’s ruling that it showed contempt of court by doing nothing to restore the 101-acre site, which was closed in 2013.
Lakes homeowners Eileen Breslin and Linda Swain filed suit in 2014 to force the restoration of the 18-hole executive course, triggering a six-year battle in which Superior Court Judge John Hannah on three occasions has ruled the course must be restored. Both the state appellate and Supreme Courts have upheld that ruling.
In a brief hearing last week, both Maynard and the plaintiffs’ lawyer, Tim Barnes, said they would need time to present some evidence and arguments about sanctions for Campagnolo’s contempt finding.
Barnes last month suggested to Campagnolo that he wants the company to pay $10,000 or $15,000 for each of the 202 homes abutting the course. That would total $2.02 million or $3.03 million.
But he clarified his request last week, telling the judge that “whatever monetary sanction we request is really only to compel or coerce compliance” with the restoration order and that if Gee complies, “the sanctions would not be required.”
He also said he intends to present one or two Ahwatukee residents, not his clients, who will testify about the impact of the course’s deteriorated condition over the last six years. That testimony would be aimed at supporting the kind of sanctions he is seeking, Barnes said.
There was no mention of Maynard’s bid to the nation’s highest court, which at least for now won’t stop the ongoing contempt proceeding.
The Supreme Court’s website says it receives at least 10,000 such petitions a year seeking the review of both civil and criminal verdicts. Out of that number, the court looks at maybe 80 to 100 more closely and then further winnows the ones it actually hears arguments on to around a dozen.
There are no time constraints on when the justices must initially rule on whether it will consider a request and Campagnolo several months ago said he would not delay proceedings in the contempt case pending their decision.
Most of Maynard’s petition summarizes the history of Gee’s ownership of the course that began in June 2006, when he and other investors through a company called Bixby Village bought it for $5.6 million.
By early 2007, the petition states, 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 the following year.
The petition notes that Hannah’s restoration order “did not specify if the golf course had to be 9 or 18 holes, whether it had to have water hazards or sand traps or how large it should be. Neither did the order state the number of hours or days it had to be open, the amount it had to charge for a round of golf nor did it discuss a multitude of other issues that arise when one operates a business.”
In attacking the state Appeals Court ruling, Maynard argues that, if left standing, “a court has the power to make a property owner run a business on their private property” and that “this violates the prohibition against involuntary servitude found in the Thirteenth Amendment.”
“With the passage of the Thirteenth Amendment, slavery was forever prohibited in the United States but the Amendment went even farther condemning various forms of domination under the heading of ‘involuntary servitude,’ he tells the high court. “Forcing one to run a business that they do not want to is involuntary servitude.”
“The primary purpose of the Thirteenth Amendment was to abolish the institution of African slavery as it existed in the United States at the time of the Civil War, but the Thirteenth Amendment was not limited to that purpose,” he continues, arguing the amendment prohibits both slavery and involuntary servitude and that the conditions covered by the latter term have never been defined.
“Involuntary servitude occurs where a person has “no available choice but to work or be subject to legal sanction,” Maynard said, adding that Gee “has no choice but to work or operate a business on his personal property or be subject to a legal sanction.”
He also says “golf reached its peak in 2005 with 60 million participants playing 550 million rounds of golf; however, in 2013, there were only 25 million participants playing 485 million rounds.”
Stating that 400 good courses across the country closed between 2017 and 2018, Maynard told the court it should consider the case because “there are hundreds of communities in the United States that have deed restrictions placed on property limiting its use to a golf course while the golf business continues to decline.”