The man who took Gov. Doug Ducey to court – and won

Carmen Forman//March 29, 2018

The man who took Gov. Doug Ducey to court – and won

Carmen Forman//March 29, 2018

Michael Pierce (Photo by Carmen Forman/Arizona Capitol Times)
Michael Pierce (Photo by Carmen Forman/Arizona Capitol Times)

Michael Pierce calls it his “Mr. Smith Goes to Washington” moment.

Two years ago, the Phoenix resident sued Gov. Doug Ducey and other state officials, asking a judge to overturn Proposition 123 — a ballot measure that increased school funding disbursements from the state land trust.

Pierce, 66, felt “vindicated” this week after U.S. District Court Judge Neil Wake ruled previous money transfers under Prop. 123 violated federal law because they diverted millions from the land trust without prior authorization from Congress.

Channeling his inner Jimmy Stewart, Pierce pulled a political maverick moment of his own when he filed the lawsuit in 2016 without an attorney.

A retired construction worker, Pierce wrote the four-page complaint by himself after reading up on state law at a local library.

An independent who characterizes himself as a “tough liberal” and a “human conservative,” Pierce said he’s tired of the state’s backward funding priorities. State leaders need to prioritize public education, said Pierce, who is contemplating coming out of retirement to teach.

“I feel strongly that the Legislature abdicated its moral and legal responsibility to adequately fund education, and that Prop. 123 was a wrong way of doing the right thing,” Pierce said.

The land trust must be managed properly to ensure sufficient education funding for future generations, Pierce said.

His lawsuit argued that Prop. 123 was illegal because it violated the proper procedure of the State Enabling Act, which allowed Arizona to prepare for statehood. The state should have first received congressional approval for the constitutional amendment before allowing voters to decide on the referendum.

Pierce grew up in New York and moved from Buffalo to Phoenix in 2005. But Arizona feels like home, he said. Opposed to the Prop. 123 ballot initiative, Pierce was struck by the fact that voters narrowly passed the measure by less than 2 percentage points.

Ducey created the Prop. 123 funding package as a response to a lawsuit brought by the schools that alleged the state violated portions of an earlier ballot measure requiring the state to annually increase its aid to schools. Ducey’s fix would infuse into the state’s underfunded schools an additional $3.5 billion over 10 years.

Pierce, who lives alone in a small, one-story north Phoenix home with his chihuahua Taffy, filed suit the day after voters approved the ballot measure.

“As citizens, we have to participate in our community and not just grumble,” he said. “I wanted to use the courts as a citizen would for the redress of an issue. It’s not because I’m just some gadfly that wants to make trouble.”

Acting alone and lacking legal experience, Pierce didn’t expect his lawsuit to go anywhere.

But as his case progressed, Wake connected Pierce to Phoenix attorney Andrew Jacob, who offered his counsel pro bono. At the age of 66, Jacob has stepped back from full-time casework, but previously told Wake he would offer his services should any interesting cases crop up.

“I pretty much figured it would die on some judge’s desk,” Pierce said of his lawsuit.

Growing up in New York, Pierce lived with, and looked up to his grandfather — a state Superior Court judge.

Eugene Burns — who served on the bench for more than two decades — took his job seriously, and had a haunting fear of wrongfully sentencing someone, Pierce said. When taking on juvenile cases, Burns would walk through the neighborhood of the child charged to get a sense of their upbringing, Pierce said.

“Judge Burns, I guess, taught me that the law is a serious thing and judges are balancers between the needs of the individual and the needs of the community,” Pierce said. “He took that seriously.”

Now at question is the $344 million in funds the state disbursed from the land trust during the past two years.

The state got authorization for Prop. 123 last week when Congress passed its omnibus spending plan. But that doesn’t retroactively account for the two years Prop. 123 was already in effect, Wake ruled this week.

But Ducey spokesman Daniel Scarpinato said, “We don’t believe that congressional action was necessary, but we have received it at this point, and believe it’s a settled issue.”

Attorneys for the state argued that Pierce didn’t have standing to bring the lawsuit, and urged the judge to dismiss the case. Pierce could go back in front of the judge and ask the state to return the $344 million to the trust — an endeavor that would land attorneys from both sides back in court. But Pierce said he’s likely to settle because he doesn’t want to take the $344 million away from the schools.

If the parties are unable to settle, Wake has requested briefings from attorneys on both sides addressing whether the recent congressional approval covers the previous two years of Prop. 123.

“From a viewpoint of politics,” Jacob, Pierce’s attorney, said, “anytime a court tells a governor he didn’t do things the right way, that’s for other people to decide if that’s a big deal, but you don’t see that all the time.”