NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PHILLIP POTTER, Plaintiff/Appellant,
v.
ARIZONA HOUSE OF REPRESENTATIVES, et al., Defendants/Appellees.
No. 1 CA-CV 23-0213
FILED 2-1-2024
Appeal from the Superior Court in Maricopa County
No. CV2022-008626
The Honorable Connie Contes, Judge (retired)
The Honorable John L. Blanchard, Judge
AFFIRMED
COUNSEL
Phillip Potter, Scottsdale
Plaintiff/Appellant
Gallagher & Kennedy, P.A., Phoenix
By Kevin E. O’Malley & Hannah H. Porter
Co-Counsel for Defendant/Appellee Arizona House of Representatives
Snell & Wilmer, L.L.P., Phoenix
By Brett W. Johnson & Derek C. Flint
Co-Counsel for Defendant/Appellee Karin Taylor Robson
The Nelson Law Group, PLLC, Phoenix
By Tim Nelson
Counsel for Defendant/Appellee Robert Meza
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.
M c M U R D I E, Judge:
¶1 Phillip Potter appeals the superior court’s dismissal of his
public records special action. He also appeals the court’s vexatious litigant
ruling and the attorney’s fees award. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2022, Potter submitted a public records request to the
Arizona House of Representatives (“the House”) and State Representative
Robert Meza (“Meza”) seeking records mainly about Meza’s involvement
with two nonprofit organizations, Open Hearts Family Wellness and The
Arouet Foundation, and their respective events held in 2020 and 2021.
¶3 The House responded the next day to clarify the scope of the
search. Soon after, the House communicated to Potter it would “turn [its]
attention to searching and processing any responsive records.” The next
month, the House’s public records counsel confirmed it had forwarded the
request to Meza to conduct his own search. The House produced four
document sets between June 9 and July 21. Potter does not dispute this.
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Separately, Meza searched his phone and found no responsive public
records.
¶4 On June 21, Potter sent Karrin Taylor Robson (“Robson”) a
public records request for “records generated through interactions and
communications between [herself] and State Representative Robert Meza.”
Robson, through counsel, responded that she is a private citizen, not subject
to the request, and thus did not maintain responsive records.
¶5 On June 29, Potter sent the House and Robson a letter
requesting confirmation that they would produce the requested
documents. Potter warned that if he did not receive an acknowledgment
within two days, he would “assume that the non-responding party(ies)
have chosen not to comply with the public records request.” They did not
respond to the letter.
¶6 On July 8, Potter filed a special action against the House,
Meza, and Robson (“Defendants”) under A.R.S. § 39-121.02 to compel the
production of public records. He also moved for an order to show cause
why the relief sought should not be granted. The court held a show cause
hearing and granted the show cause motion. Potter also moved for in camera
inspection of disputed records.
¶7 Two months later, Robson produced records of her email
exchanges and an affidavit attesting she had produced her responsive
records. She attested, “Although I do not believe the correspondence I have
with Mr. Meza qualifies as a public record, I . . . provide them herein to
avoid further involvement or expense in this matter.” Robson also
requested that she be voluntarily dismissed from the matter, which Potter
declined. Defendants maintain that although Robson is not subject to the
public records law, the production was an “[attempt] to placate Plaintiff
and avoid the expense of litigation.”
¶8 Meza searched his personal computer. The search yielded
two potentially responsive documents, letters to elected officials about a
charity event, which Meza produced. He also provided an affidavit
attesting that his search was complete, and he maintained no other
responsive public records.
¶9 On September 15, each defendant moved to dismiss the suit.
The House argued it produced all the documents in its custody and had no
duty to seize, search, and produce records from the other defendants.
Robson contended that Potter lacked standing or a claim against her
because she is a private citizen not subject to the public records law. And
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
Meza argued the complaint was not ripe because the parties were still
producing documents when Potter filed suit. Each defendant asserted the
case was moot. Shortly after, Potter applied for another order to show
cause.
¶10 On November 16, the court held an oral argument on the
motions to dismiss. The court granted Defendants’ motions to dismiss and
denied Potter’s motion for in camera inspection of the disputed records and
his second application for order to show cause. Potter filed a motion for
reconsideration, which the court denied.
¶11 Defendants jointly moved to designate Potter as a vexatious
litigant under A.R.S. § 12-3201, alleging the frivolous nature of this case and
Potter’s past cases. Potter moved to dismiss the vexatious litigant motion,
which the court denied.
¶12 Defendants moved for attorney’s fees as sanctions under
A.R.S. §§ 12-349, 12-350. Robson also filed an Arizona Rule of Civil
Procedure (“Rule”) 11 motion for sanctions. The court granted each motion.
¶13 Potter moved for a temporary restraining order to retain
Defendants’ records. The court denied the motion because it had dismissed
the action.
¶14 In February 2023, the court held an evidentiary hearing on the
motion to designate Potter as a vexatious litigant. It granted the motion and
found Potter “engaged in vexatious conduct per [A.R.S.] § 12-3201 by:
repeated filing of court actions without substantial justification; and
repeatedly filing documents or requests for relief that have been the subject
of previous rulings by the court in similar litigation.” The court prohibited
Potter from “fil[ing] any new pleading, motion or other document in this
case or any other pending civil action without prior leave of the judge
assigned to that case.”
¶15 Potter appealed, and we have jurisdiction under A.R.S.
§§ 12-2101(A)(1), 12-2101(A)(5)(b), and 12-120.21(A)(1).
DISCUSSION
A. The Superior Court Correctly Dismissed Potter’s Claims Under
Rule 12(b)(6).
¶16 We review the dismissal of a complaint under Rule 12(b)(6) de
novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). Dismissal is
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
appropriate under Rule 12(b)(6) only if “as a matter of law plaintiffs would
not be entitled to relief under any interpretation of the facts susceptible of
proof.” Coleman, 230 Ariz. at 356, ¶ 8 (cleaned up). “When adjudicating a
Rule 12(b)(6) motion to dismiss, Arizona courts look only to the pleading
itself and consider the well-pled factual allegations contained therein.”
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). Courts must
“assume the truth of all well-pleaded factual allegations and indulge all
reasonable inferences from those facts, but mere conclusory statements are
insufficient.” Coleman, 230 Ariz. at 356, ¶ 9.
¶17 Potter contends the superior court erred by granting
Defendants’ motions to dismiss. He maintains he has arguable claims
against each defendant because Defendants’ record searches and
productions did not comply with the public records law. A.R.S.
§ 39-121.02(A) provides:
Any person who has requested to examine or copy public
records pursuant to this article, and who has been denied
access . . . may appeal the denial through a special action in
the superior court, pursuant to the rules of procedure for
special actions against the officer or public body.
1. The Superior Court Did Not Err by Dismissing the Claims
Against Meza.
¶18 Potter asserts that Meza’s search was insufficient because he
withheld public records subject to Potter’s request. Our supreme court has
articulated these three definitions of public records:
(1) a record made by a public officer in pursuance of a duty,
the immediate purpose of which is to disseminate
information to the public; (2) a record required by law to be
kept, or necessary to be kept in the discharge of a duty
imposed by law or directed by law to serve as a memorial and
evidence of something written, said or done; or (3) any
written record of transactions of a public officer in his office,
which is a convenient and appropriate method of discharging
his duties, and is kept by him as such, whether required by
law or not.
Lunney v. State, 244 Ariz. 170, 174, ¶ 8 (App. 2017) (cleaned up) (citing
Mathews v. Pyle, 75 Ariz. 76, 78-79 (1952)). Each definition focuses on records
relating to public officials’ duties. See id. Thus, our supreme court has held
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
that only documents “with a ‘substantial nexus’ to government activities
qualify as public records, and the nature and purpose of a document
determine whether it is a public record.” Lake v. City of Phoenix, 222 Ariz.
547, 549, ¶ 8 (2009). “The public is not entitled to a public [officer’s] purely
personal records,” and the officer’s mere possession of a document does not
alone make the document a public record. Lunney, 244 Ariz. at 178, ¶ 27;
Griffis v. Pinal County, 215 Ariz. 1, 4, ¶ 11 (2007). Moreover, “[a]lthough the
public records law creates a strong presumption in favor of disclosure, that
presumption applies only when a document first qualifies as a public
record.” Griffis, 215 Ariz. at 5, ¶ 12.
¶19 Potter’s requested records concern Meza’s communications
with private charitable organizations about their events. Potter alleged that
he “has reason to believe Representative Meza and Mrs. Taylor Robson are
in possession of public records they have chosen to withhold in violation of
the PRL.” He “requested to inspect records held by the House and
Representative Meza regarding, inter alia, Representative Meza’s
promotion of, and involvement with, events Open Hearts Family Wellness
and The Arouet Foundation conducted in February 2020 and May 2021,
respectively.” He asserted that Meza “organized, solicited sponsorships,
appeared, and spoke under his Officer title” at fundraising events for Open
Hearts Family Wellness and The Arouet Foundation. And he contended the
events required “significant planning that would generate public records.”
¶20 But Potter failed to allege how the requested records have a
“substantial nexus” with government activity. See Lunney, 244 Ariz. at 174,
¶ 8. A legislator’s private involvement in private charitable events would
not generate public records without some showing that the legislator
transacted government activities or discharged governmental duties
during the event. See Lake, 222 Ariz. at 549, ¶ 8; Lunney, 244 Ariz. at 174, ¶ 8.
Defendants stated in the dismissal hearing that the events were “private
charitable event[s] that high-profile people happened to support . . . there
was no legislative function being conducted.” And Potter does not
sufficiently allege that Meza’s involvement with the charitable
organizations bore a connection to his legislative duties. Instead, he makes
bare legal conclusions alleging corruption, which cannot withstand a Rule
12(b)(6) motion. See Coleman, 230 Ariz. at 356, ¶ 9.
¶21 Because public records do not encompass records of a purely
private nature, see Griffis, 215 Ariz. at 4, ¶ 10, Potter’s claim against Meza
fails under Rule 12(b)(6).
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POTTER v. ARIZONA HOUSE, et al.
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2. The Superior Court Did Not Err by Dismissing the Claims
Against Robson.
¶22 Potter argues that Robson is subject to public records
litigation. Defendants respond that Robson is a private citizen, so the court
did not err by dismissing the claims against her.
¶23 Special actions under A.R.S. § 39-121.02(A) are limited to suits
against an “officer or public body.” And the inspection of public records is
limited to records “in the custody of any officer.” A.R.S. § 39-121 (emphasis
added). An “[o]fficer” is “any person elected or appointed to hold any
elective or appointive office of any public body and any chief
administrative officer, head, director, superintendent or chairman of any
public body.” A.R.S. § 39-121.01(A)(1). Moreover, the purpose of the public
records law “is to open government activity to public scrutiny, not to disclose
information about private citizens.” Griffis, 215 Ariz. at 4, ¶ 11.
¶24 Potter claims it is disingenuous for Robson to call herself a
private citizen because she was an elected member of the Arizona Board of
Regents from 2017 through 2021, when the requested records were created,
and a candidate for office when Potter filed the special action. He contends
“her status as a state actor and public figure survived her Arizona Board of
Regents resignation and primary election loss” but provides no support for
this proposition. Further, her candidacy for governor is not relevant, as an
officer must be a person either “elected or appointed,” not merely a
candidate. See A.R.S. § 39-121.01(A)(1).
¶25 Potter requested records from Robson and filed suit in 2022
after she had resigned from the Arizona Board of Regents. In 2022, Robson
was neither an appointed board member nor an elected official. Rather, she
was a private citizen and thus not an “officer.” See A.R.S. § 39-121.01(A)(1).
Because a person can only bring suit under A.R.S. § 39-121.02(A) against an
“officer or public body,” Potter failed to state a claim against Robson on
which relief can be granted. See Ariz. R. Civ. P. 12(b)(6).
¶26 Potter also argues that regardless of Robson’s status as a
private citizen, she is subject to the public records law as a records
custodian. He fails to explain what makes Robson a custodian but contends
she has custodial duties.
¶27 To be sure, custodians have duties to produce public records.
See A.R.S. § 39-121.01(D). But the Freedom of Information Act (“FOIA”)
caselaw informs that “custodian” seldom encompasses private citizens. See
Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 539, ¶ 15, n.3 (App. 2008)
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
(“When interpreting Arizona’s public records statutes, it is appropriate to
look to FOIA for guidance.”). “[T]here is no authority in the FOIA or
Privacy Act obligating non-government organizations or private
individuals to maintain or make available documents to the public.”
Germosen v. Cox, No. 98 Civ. 1294(BSJ), 1999 WL 1021559, at *20 (S.D.N.Y.
Nov. 9, 1999) (mem. decision); see also Buemi v. Lewis, No. 94-4156, 1995 WL
149107, at *2 (6th Cir. Apr. 4, 1995) (mem. decision) (“The Act applies only
to federal agencies . . . not to cities and private individuals.”). And as
Defendants correctly point out, if we were to follow Potter’s sweeping
definition of “custodian,” any private citizen who communicates with a
public officer would be subject to a host of public records law requirements.
We decline to do so.
¶28 Potter misplaces reliance on Fann to argue that this is an
exceptional case in which a private entity must produce public records. See
Fann v. Kemp, 1 CA-SA 21-0141, 2021 WL 3674157 (Ariz. App. Aug. 19, 2021)
(mem. decision). In Fann, the Senate contracted with a private company to
perform an election audit, an “important legislative function.” Id. at *1, ¶ 2,
*5, ¶ 24. The private company was an undisputed “authorized agent” of the
Senate. Id. at *4, ¶ 19, n.1. But here, Robson did not have a contractual or
agency relationship with Meza or the House, nor was she performing an
“important legislative function.” See id. at *1, ¶ 2, *5, ¶ 24. Rather, as Potter
detailed in his complaint, he requested records from Robson “regarding
Representative Meza’s involvement in securing [Robson’s] ‘agreement,
preparation, and performance’ as the ‘Honorary Chairwoman’ for the May
2021 Arouet Foundation event and as the ‘Event Host’ for the February 2020
Open Hearts Family Wellness event.” Potter failed to explain how Robson’s
actions as a charitable event organizer served an important legislative
function. Cf. id. at *4, ¶ 19 (The election audit is an important public function
and official legislative activity.). Fann does not apply because it determined
a public body’s duty to produce records, not a private party’s duty. See id.
at *1, ¶ 1.
¶29 Potter’s reliance on Cyber Ninjas, Inc. v. Hannah, 1 CA-SA
21-0173, 2021 WL 5183944 (Ariz. App. Nov. 9, 2021) (mem. decision), is also
misplaced. In Cyber Ninjas, the Arizona Republic, published by Phoenix
Newspapers, Inc. (“PNI”), served a request on private company Cyber
Ninjas to inspect its audit-related documents and later filed a public records
special action. Id. at *1, ¶¶ 2-4. This court held that although Cyber Ninjas
is not an “officer” or “public body,” PNI “may obtain relief against Cyber
Ninjas under the PRL because Cyber Ninjas is the sole ‘custodian’ of
documents that are public records subject to disclosure under the PRL.” Id.
at *2-3, ¶¶ 12-13. We stated, “To the extent Cyber Ninjas is in sole
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
possession of audit-related public records because of its contract with the
Senate, Cyber Ninjas has become the custodian of those records under the
PRL.” Id. at *2-3, ¶ 15. We also explained, “Cyber Ninjas was properly
joined as a necessary party in PNI’s special action because, even though it
is a private company, as a contractor and agent of the Senate, it is alleged to
be the sole custodian of records pertaining to the audit that are subject to
disclosure under the PRL.” Id. at *3, ¶ 17.
¶30 Cyber Ninjas’ facts are not like those before us. Potter did not
allege that Robson is in sole possession of public records. Nor did he allege
that Robson has a contractual or agency relationship with Meza or the
House. And as discussed above, he did not sufficiently allege that the
records at issue are subject to public records law. Thus, the facts that made
Cyber Ninjas a custodian of records are not alleged here, and so joinder of
a sole custodian is not at issue.
3. The Superior Court Did Not Err by Dismissing the Claims
Against the House.
¶31 Potter argues the House’s search was inadequate because the
House limited its search to its email servers and failed to secure other
records in Meza’s and Robson’s possession. Defendants respond that the
House does not have a duty to seize materials held by officers or private
individuals. We agree with Defendants.
¶32 “Each public body shall be responsible for the preservation,
maintenance and care of that body’s public records, and each officer shall be
responsible for the preservation, maintenance and care of that officer’s public
records.” A.R.S. § 39-121.01(C) (emphasis added). “[O]fficers and public
bodies are under independent obligations to record their work and otherwise
maintain records.” Op. Ariz. Att’y Gen. I17-004 (July 7, 2017) (emphasis
added). Further, inspection of public records is limited to those “in the
custody of any officer.” A.R.S. § 39-121; see also Phoenix New Times, 215 Ariz.
at 540, ¶ 22 (A public body’s “burden under the public records law is to
provide access to public records that are in its custody.”). Thus, a public
body does not have to maintain records other than its own and must only
produce records within its custody. A.R.S. §§ 39-121.01(C), 39-121.
“Custody” means “the care and control of a thing or person for inspection,
preservation, or security.” West Valley View, Inc. v. Maricopa County Sheriff’s
Off., 216 Ariz. 225, 229, ¶ 16 (App. 2007) (cleaned up). And constructive
custody exists where a body “has the right to control the records, either
directly or through another person.” See Fann, 1 CA-SA 21-0141, at *4, ¶ 22.
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POTTER v. ARIZONA HOUSE, et al.
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¶33 Here, the House searched and produced four sets of records.
The House did not have a duty to obtain records from Robson because her
documents as a private citizen were not in the House’s “care and control.”
See West Valley View, Inc., 216 Ariz. at 229, ¶ 16; see also Phoenix New Times,
215 Ariz. at 540, ¶ 22. Nor did the House have the right to control Robson’s
records, as they did not have an agency relationship. See, e.g., Fann, 1 CA-SA
21-0141, at *4, ¶¶ 22-23. Thus, the House did not have the actual or
constructive custody of Robson’s records required to trigger a duty. See
West Valley View, Inc., 216 Ariz. at 229, ¶ 16; Fann, 1 CA-SA 21-0141, at *4,
¶ 22; A.R.S. § 39-121. And as Defendants submit, Plaintiff’s position “would
put the House in an impossible duty to maintain documents on devices that
it has no control over.”
¶34 The House also did not have a duty to maintain or produce
records solely in Meza’s custody. See A.R.S. §§ 39-121.01(C), 39-121. The
House produced the responsive documents for Meza that were in its
custody. The House did not have actual or constructive possession over
how Meza maintained records on his personal devices. See West Valley View,
Inc., 216 Ariz. at 229, ¶ 16; Fann, 1 CA-SA 21-0141, at *4, ¶ 22; see also Op.
Ariz. Att’y Gen. I17-004 (“[A]n agency does not have control of private
electronic devices.”).
¶35 More importantly, Potter did not sufficiently allege that the
records he requested from the House were public records. See Lake, 222
Ariz. at 549, ¶ 8. Whatever the House’s production duties, they are limited
to public records. See A.R.S. §§ 39-121, 39-121.01(B). Thus, Potter’s claim
against the House fails. See Ariz. R. Civ. P. 12(b)(6).
4. Potter’s Claims Against Defendants Are Moot.
¶36 The parties also contest whether the claims are now moot.
Potter argues that the case was improperly dismissed because his claims
did not become moot. Defendants respond that Potter’s claims were moot
because they produced all responsive public records in their possession.
¶37 To argue mootness, Robson and Meza rely on their affidavits
attesting that they produced all responsive documents in their possession.
If a party presents matters outside the pleadings to the court in a Rule
12(b)(6) motion and the material is not excluded by the court, “the motion
must be treated as one for summary judgment under Rule 56.” Ariz. R. Civ.
P. 12(d); see Ariz. R. Civ. P. 56. Because Defendants’ affidavits are outside
the pleadings and the court did not exclude them, we review the motion to
dismiss as one for summary judgment. Coleman, 230 Ariz. at 356, ¶ 9. Thus,
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
the correct inquiry is whether there were genuine issues of material fact
about the claims’ mootness. See Frey v. Stoneman 150 Ariz. 106, 109 (1986).
¶38 Although Defendants have the initial burden to show they
adequately searched for responsive records, they can discharge their
burden through “affidavits or declarations that provide reasonable detail
of the scope of the search.” See Hodai v. City of Tucson, 239 Ariz. 34, 44, ¶ 30
(App. 2016) (citations omitted). Defendants Meza and Robson submitted
affidavits with their motions to dismiss and declared that they produced
their responsive records. Meza’s affidavit stated he had “no other public
records responsive to Mr. Potter’s public records request in [his] personal
files.” Potter provided no contrary evidence to rebut Defendants’
attestations.
¶39 Other jurisdictions have recognized that a public records suit
is moot once the requested records are produced. See, e.g., Crooker v. U.S.
State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (“Once the records are produced
the substance of the controversy disappears and becomes moot since the
disclosure which the suit seeks has already been made.”); Hajro v. U.S.
Citizenship & Immigr. Servs., 811 F.3d 1086, 1103 (9th Cir. 2016) (“[A]fter the
agency produces all non-exempt documents . . . the specific FOIA claim is
moot because the injury has been remedied.”). To argue that the claims are
not moot, Potter asserts that “a defendant cannot by its own voluntary
conduct ‘moot’ a case.” See Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137,
141 (1988). Potter is correct that whether a case is moot is the court’s
decision, not the parties’. Mootness is a matter of judicial discretion. See id.
Because there is no issue of material fact about whether Defendants
discharged their duties under the public records law, we find Potter’s
claims moot.
¶40 Because Potter failed to state a claim against each Defendant,
and because the claims are now moot, we need not decide whether they
were ripe.
B. The Superior Court Did Not Err by Denying Discovery and In
Camera Review.
¶41 Potter contends that the court had to grant discovery and
allow for in camera review of the requested records. Potter’s argument relies
on Griffis, 215 Ariz. at 2-3, ¶ 1. He properly cites Griffis’ instruction that
“[w]hen the facts of a particular case raise a substantial question as to the
threshold determination of whether the document is subject to the statute,
the court must first determine whether that document is a public record.”
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Id. at 5, ¶ 13 (cleaned up). If there is a substantial question, the court may
need to conduct an in camera review. See id. at 5, ¶¶ 13-15.
¶42 But here, Potter has not raised a “substantial question” about
whether the documents are public records. As detailed above, his complaint
lacked well-pled allegations that the records have a substantial nexus with
government activities. See Lake, 222 Ariz. 547, 549, ¶ 8 (2009). The inquiry
ends there because such an allegation must create a substantial question on
whether the records fall under public records law. The court did not err.
C. The Superior Court Did Not Err by Denying Potter His Costs.
¶43 Potter claims the superior court erred by denying him costs
because he prevailed when Defendants produced records. We note that
Potter only requested costs in his response to Robson’s motion to dismiss
but not in his responses to the other defendants’ motions. Still, the public
records law provides that the court “may award attorney fees and other
legal costs that are reasonably incurred in any action under this article if the
person seeking public records has substantially prevailed.” A.R.S.
§ 39-121.02(B) (emphasis added). Potter did not substantially prevail, but
even if he did, it is within the court’s discretion to award costs. See A.R.S.
§ 39-121.02(B). Thus, the court did not err.
D. The Superior Court Did Not Abuse Its Discretion When It
Designated Potter a Vexatious Litigant Under A.R.S. § 12-3201.
¶44 “Arizona courts possess inherent authority to curtail a
vexatious litigant’s ability to initiate additional lawsuits.” Madison v.
Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012). We review an injunction against
filing lawsuits for an abuse of discretion. See Flying Diamond Airpark, LLC v.
Meienberg, 215 Ariz. 44, 47, ¶ 9 (App. 2007). “We defer to the court’s findings
of fact unless clearly erroneous, but we review de novo its legal
conclusions.” Id. We also review de novo issues of statutory interpretation.
Madison, 230 Ariz. at 11, ¶ 8.
¶45 A pro se litigant is vexatious if the court finds he engaged in
vexatious conduct. A.R.S. § 12-3201(C). Once designated a vexatious
litigant, the pro se litigant may not file new pleadings, motions, or other
documents without prior leave of the court. A.R.S. § 12-3201(B).
¶46 A.R.S. § 12-3201(E)(1) defines “vexatious conduct” as:
[A]ny of the following:
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(a) Repeated filing of court actions solely or primarily for the
purpose of harassment.
(b) Unreasonably expanding or delaying court proceedings.
(c) Court actions brought or defended without substantial
justification.
(d) Engaging in abuse of discovery or conduct in discovery
that has resulted in the imposition of sanctions against the pro
se litigant.
(e) A pattern of making unreasonable, repetitive and
excessive requests for information.
(f) Repeated filing of documents or requests for relief that
have been the subject of previous rulings by the court in the
same litigation.
Here, the superior court found Potter engaged in vexatious conduct
prescribed by § 12-3201. See A.R.S. § 12-3201(E)(1)(c), (f). It found he
“engaged in vexatious conduct per [A.R.S.] § 12-3201 by: repeated filing of
court actions without substantial justification; and repeatedly filing
documents or requests for relief that have been the subject of previous
rulings by the court in similar litigation.”
¶47 Potter argues that the superior court’s vexatious litigant order
does not follow the plain language of § 12-3201(E)(1)(c) or § 12-3201(E)(1)(f).
Potter contends his behavior did not satisfy § 12-3201(E)(1)(c) because his
claims were justified. But the court specifically found in its order that Potter
“repeated[ly] fil[ed] . . . court actions without substantial justification[.]”
And that finding is supported by the record. “Without substantial
justification,” “means that the claim or defense is groundless and is not
made in good faith.” A.R.S. § 12-3201(E)(2); A.R.S. § 12-349(F). The court
found that Potter’s court actions were groundless and not in good faith
when it stated, “[t]he summary of Plaintiff’s claims includes many
examples of frivolous motions, disregarding court orders, re-hashed
positions that were rejected by the courts, and plain attempts to harass
parties and/or unnecessarily expand litigation matters.” Because this
behavior supports the finding that Potter repeatedly filed court actions
“without substantial justification,” the court did not err by finding that
Potter engaged in vexatious conduct under § 12-3201(E)(1)(c). See A.R.S.
§§ 12-3201(E)(1)(c), 12-349(F).
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
¶48 A “vexatious conduct” finding under § 12-3201(E)(1)(c) alone
is enough to designate Potter as a vexatious litigant. See A.R.S. § 12-3201(C),
(E)(1). Thus, we need not consider Potter’s challenge to the court’s findings
under § 12-3201(E)(1)(f).
¶49 Potter also contends he cannot be designated a vexatious
litigant because he “prevailed.” He claims it is “absurd and irrational . . . to
conclude Appellant was simultaneously the prevailing party and an
‘abusive’ (i.e., vexatious) litigant.” But Potter misunderstands what it
means to prevail. After Potter filed suit, Meza produced only two letters
that Potter stated were “not the subject of this [s]pecial [a]ction.” Robson
produced documents she believed she had no duty to produce to avoid
further litigation and expense. The House never produced additional
records after Potter filed suit.
¶50 Moreover, Potter’s claims against each defendant were
properly dismissed. Thus, Potter did not prevail, and the court’s
designation of Potter as a vexatious litigant did not lead to absurd results.
See State v. Estrada, 201 Ariz. 247, 251, ¶ 16 (2001) (“[W]e interpret and apply
statutory language in a way that will avoid an untenable or irrational
result.”).
¶51 Potter also argues that the injunction does not satisfy the
court’s due process requirements. See Madison, 230 Ariz. at 14, ¶ 18. We
disagree. When the court orders pre-filing restrictions, it must adhere to
four principles:
(1) to satisfy due process, the litigant must be afforded
notice and an opportunity to oppose the order, (2) the
court must create an adequate record for appellate review
that includes a listing of all cases and motions leading the
court to enter the order, (3) the court must make
substantive findings as to the frivolous or harassing nature
of the litigant’s actions, and (4) the order must be narrowly
tailored to closely fit the specific vice encountered.
Id. (cleaned up). First, Potter was afforded notice and an opportunity to
oppose the order when the court gave notice and held an evidentiary
hearing on the motion. The court allowed Potter to testify, admitting and
reviewing nine exhibits.
¶52 Second, the court referenced Potter’s cases and motions that
led to this order. It listed Maricopa County cause numbers CV2021-005501,
CV2021-013210, CA-CV 2022-0441, and CV2022-014146, noting “[a] review
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
of the orders in those matters paints a troubling picture.” It also referenced
granted motions to strike Potter’s pleadings because of their inflammatory
and irrelevant allegations, only for Potter to repeat the stricken allegations
in later filings.
¶53 Third, the court made substantive findings about the
frivolous and harassing nature of Potter’s actions when it found his “claims
include[] many examples of frivolous motions” and “plain attempts to
harass parties and/or unnecessarily expand litigation matters.”
¶54 Finally, the court narrowly tailored its order when ordering
that “Potter may not file any new pleading, motion or other document in
this case or any other pending civil action without prior leave of the judge
assigned to that case.” “[O]rders restricting a person’s access to the courts
must be based on adequate justification supported in the record and
narrowly tailored to address the abuse perceived.” De Long v. Hennessey,
912 F.2d 1144, 1149 (9th Cir. 1990). The court here found:
Plaintiff’s various lawsuits have added new parties over time
as he has expanded his efforts to pursue his conspiracy
theories. He has sued his ex-wife, her family, family-law
attorneys, medical providers, Arizona Public Service,
insurance companies, a member of the Arizona House of
Representatives, the Arizona House of Representatives, and
several others.
¶55 Potter has an extensive history of bringing baseless actions
against any person or entity. The breadth of the order addresses this specific
vice. As the court acknowledged, “[it] is mindful that requiring court
approval for any filing will place a burden on Plaintiff to demonstrate a
factual and legal basis for future filings. But that is what is needed in this
case.” We agree. Cf. Moy v. United States, 906 F.2d 467, 470-71 (9th Cir. 1990)
(A pre-filing restriction that prevents petitioner from filing complaints until
they are reviewed is not narrowly tailored when there is no evidence of
petitioner’s general history of litigious filing.).
¶56 Potter argues that the order unconstitutionally infringes his
First Amendment political speech rights. But “suits that lack . . . a
reasonable basis. . . . are not within the scope of First Amendment
protection.” Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743
(1983) (cleaned up); see also Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir.
1987) (A pre-filing requirement applied to a vexatious litigant “does not
violate the first amendment.”). Thus, the First Amendment does not protect
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
vexatious litigant behavior. See Filipas, 835 F.2d at 1146. Potter misconstrues
the order as “retaliation for exercising his fundamental right to engage in
core political speech.” Rather, the order results from his baseless and
relentless litigation. This consequence does not violate his First
Amendment rights, and, as Defendants state, the order will not bar Potter
from filing pleadings made in good faith.
¶57 Finally, Potter asserts the court improperly denied his motion
to dismiss the vexatious litigant proceeding under A.R.S. § 12-751(A). “In
any legal action that involves a person’s lawful exercise of the right to
petition . . . the person . . . may file a motion to dismiss or quash the action
under this section.” A.R.S. § 12-751(A). But a person who files a motion
under the provision “has the burden of establishing prima facie proof that
the legal action was substantially motivated by a desire to deter, retaliate
against or prevent the lawful exercise of a constitutional right.” A.R.S.
§ 12-751(B). Because Potter does not provide proof of Defendants’ desires
to deter, retaliate, or prevent the lawful exercise of his constitutional rights,
Potter failed to meet his burden under § 12-751(B).
E. The Superior Court Did Not Err by Granting the Defendants
Attorney’s Fees.
¶58 Potter argues that the court erred by granting Defendants fees
under A.R.S. § 12-349. “We view the evidence in a manner most favorable
to sustaining the award and affirm unless the trial court’s finding that the
action can be so characterized is clearly erroneous.” Phoenix Newspapers, Inc.
v. Dep’t of Corr., 188 Ariz. 237, 243 (App. 1997). Under A.R.S. § 12-349(A),
the court must assess attorney’s fees and expenses against a party that
brings a claim without substantial justification or mainly for delay or
harassment. See § 12-349(A)(1), (2). Because the evidence shows that Potter
brought the claim without substantial justification or mainly for delay or
harassment, the court’s fee award was not clearly erroneous.
¶59 Potter argues that the court erred by granting Robson’s
motion for Rule 11 sanctions. See Ariz. R. Civ. P. 11(c). We review an award
of Rule 11 attorney’s fees for an abuse of discretion. Villa De Jardines Ass’n
v. Flagstar Bank, FSB, 227 Ariz. 91, 96, ¶ 12 (App. 2011). Rule 11 requires that
a party’s pleading is not “presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation” and that the pleading’s “claims, defenses, and other legal
contentions [be] warranted by existing law or by a nonfrivolous argument.”
Ariz. R. Civ. P. 11(b)(1)-(2). If a pleading violates this rule, the court may
impose sanctions. See Ariz. R. Civ. P. 11(c). Here, reasonable inquiry shows
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POTTER v. ARIZONA HOUSE, et al.
Decision of the Court
that the A.R.S. § 39-121.02 claims against Robson as a private citizen are not
warranted by existing law and are frivolous. See Ariz. R. Civ. P. 11(b)(2).
Evidence also supports that Potter petitioned Robson for an improper
purpose. See id. Thus, the evidence shows that Potter violated Rule 11(b).
The court did not err by granting Robson Rule 11 sanctions.
ATTORNEY’S FEES AND COSTS
¶60 Potter requests his costs on appeal under A.R.S. §§ 12-341,
12-349(A)(1), (2), (3), and 39-121.02(B). We decline the request because he
did not prevail on appeal. Defendants seek attorney’s fees under A.R.S.
§ 12-349. Because Potter brought this appeal without substantial
justification, we award Defendants their reasonable attorney’s fees and
costs upon compliance with ARCAP 21.
CONCLUSION
¶61 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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