Vote on motorcycle CC&R heads to members

Here is the full text of Tom McCrackin's email about the hearing on his request for a temporary restraining order:

Request denied.

Hearing on my Application for a Temporary Restraining Order took place on July 24, 2012.  The judge called the case, and Defendants' counsel and I had a brief discussion with the judge at the bench.  The judge advised us that he himself owned and rode a motorcycle, but that that would not affect his judgment in this case, and that he could be fair to both sides.  I told the judge I would take him at his word.

I then returned to counsel's table, verified that the court had read all pleadings, and began my argument.  The court almost immediately interrupted me, told me that I had a good argument, that it was logical, and that it made sense.  He said, however, that I hadn't supported the argument with evidence to establish that Article XIII of the CC&Rs had never been intended to empower residents of RM South to vote to amend or revoke CC&Rs that applied solely to RM North lots.  I suggested that, since it was Defendants, and not myself, who wished to dilute and thereby deny the valuable property rights of over two-thirds of all RMA lot owners, Defendants should have the burden of proving that the drafters of Article XIII actually intended such a result.

I further replied that the only facts I had at the time I had written my Application for a TRO and my Complaint for Declaratory Relief was information that had been provided to me by Defendant RMA Board of Directors through the RMA Manager's Office.  Defendants had informed me, prior to initiation of this litigation, that no other information bearing on Article XIII existed, that there was no "smoking gun" (i.e., evidence of the drafters' intent), and that all such historical information had either been misplaced, lost or destroyed.

I then informed the judge that in fact additional information did exist, as I had found out when I was served with Defendants' Opposition to my Application for a Temporary Restraining Order.  Defendants' Opposition included 9 exhibits, all of which had some bearing on the case, and some of which dealt directly with our present CC&Rs.  For instance, Exhibit 9 contained the names of the six RMA residents who comprised the 1994-1995 RMA CC&R Revision Committee that drafted and approved Article XIII and all other CC&Rs in our present version of the Declaration.  The Exhibit revealed that five of the six Committee members were from RM North; only one member was from RM South.

Defendants had contended, both before initiation of litigation and in their Opposition to my application for a TRO, that the drafter or drafters of Article XIII might have intended to confer upon RM South residents the power to vote to amend or revoke CC&Rs that applied solely to RM North lots because of "politics" and "compromise".  Defendants suggested that such empowerment may have been conferred to induce RM South to agree to be annexed into RMA.  At the hearing, Defendants' attorney again suggested that RM North had agreed to empower RM South residents to vote on North-only CC&Rs as part of this supposed "horse trading".

At that point, I informed the Court that I wished to call to the stand to offer testimony the gentleman who had been the only RM South resident on the 1994-1995 Revision Committee.  The Court inquired why I wished to do so.  I informed the court that the witness would disprove the sole factual basis of Defendants' argument, that the witness would testify that there had been no such "horse trading" as alleged by Defendants, that neither he nor anyone else on the Committee had suggested or demanded that residents of RM South be empowered to vote on North-only CC&Rs, that no one had come to the Committee proposing such a thing, that the matter had never been raised in Committee, much less voted on in Committee, and that no one had ever suggested that residents of RM North should be denied the protections afforded to RM South residents by Article XIII.  I argued that Defendants had opened the door to this testimony by suggesting such power had been conferred on RM South residents by the Committee as a result of "politics", "compromise" and "horse trading", words used in Defendants' brief and/or in Defendants' counsel's oral argument to the court.

Parenthetically, the witness was a former Lockheed engineer, RMA Board Member for seven years, and RMA Board President.  He had no axe to grind, and a very good memory.

I further informed the court that the witness would testify that his name, telephone number and address were listed in the RMA telephone book, but that no one from the RMA Board of Directors or the RMA General Manager's Office had ever contacted him to learn what he knew about the CC&R Revision Committee, "horse trading", or whether Article XIII had in fact been intended to confer power on RM South residents to vote on RM North-only CC&Rs.

The Court denied my request that I be permitted to call this witness, who was sitting outside the courtroom waiting to be called.  The Court did not address my argument that Defendants had, by alleging that a deal had been made to confer power upon RM South residents to vote on RM North-only CC&Rs, opened the door to allowing this witness to testify to refute that allegation.  I believe the Court's ruling denying my request to call the witness was erroneous under the circumstances.

I also argued that if Article XIII were to be read as empowering RM South residents to vote on RM North-only CC&Rs, the Article had not given adequate notice to the RMA residents who voted to approve it that such was its meaning and intent.  The Article does not state that RM South residents are empowered to vote on RM North-only CC&Rs, and in fact does not even mention RM North.  The average person (e.g., Revision Committee members, RMA voting members) would simply not read the Article as conferring such power.  I argued that reading the Article as conferring such power upon RM South residents deprives RM North residents of valuable property rights without complying with Constitutional due process requirements of reasonable notice and an opportunity to be heard).  I stated that if Defendants wished to confer such power upon RM South residents, they should start their own petition drive, with a petition that expressly states its intention to so empower RM South residents.  I suggested that the petition would certainly fail if RM North residents knew what they were being asked to approve.  The Court did not address this argument.

The Court denied my request for a TRO on the grounds that (1) I had failed to establish that denial of the proposed TRO would result in irreparable harm, and (2) I had failed to establish a reasonable probability of prevailing on the merits in my Complaint for Declaratory Relief.  I believe the Court erred in doing so, but as I stated a few months ago, I do not intend to take this matter further than the TRO hearing.  It is clear that the same Court will rule in the same way at the Hearing on my Complaint for Declaratory Relief, and I am therefore dismissing that Complaint.

By the end of the hearing, and based of course in part upon the offer of proof as to what the witness would testify to, it should have been evident to anyone of reasonable intelligence who had been in attendance that the drafters of Article XIII had never intended to confer upon RM South residents the power to vote to amend or revoke CC&Rs that apply solely to RM North lots, nor had they intended to exclude RM North residents from its protections.