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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Appeal from the Superior Court in Maricopa County

No. CV2022-008626

The Honorable Connie Contes, Judge (retired)

The Honorable John L. Blanchard, Judge

AFFIRMED

FILED 2-1-2024
2

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. 
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

3

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
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

4

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 
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

5

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 
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

6

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).
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

7

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)
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

8

(“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 
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

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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.
POTTER v. ARIZONA HOUSE, et al.

Decision of the Court

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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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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.” 
POTTER v. ARIZONA HOUSE, et al.

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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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¶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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Decision of the Court

15

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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Decision of the Court

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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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Decision of the Court

17

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.