Upset with his ruling on education funding, Gov. Doug Ducey is taking the unusual step of lashing out at a federal judge appointed by a Republican president and calling on him to resign.
“Judge (Neil) Wake puts on a robe in the morning and thinks he’s God, but he’s not,” Ducey said late Tuesday in the immediate wake of the decision that said the governor and state acted illegally in taking money from an education trust account without getting required congressional approval.
And the governor said he intends to spread the word about what he claims is not just an incorrect decision but an active bias by the judge against the school funding plan that Ducey crafted and Wake concluded was illegally enacted.
“I want to tell you what everyone down at the courthouse needs to know,” Ducey said.
“It’s time for Judge Wake to retire,” the governor said. “He’s an embarrassment to the legal community.”
Ducey doubled down on his insults of Wake on Wednesday.
“There are third-year law students at ASU that can write a more coherent opinion than the one that he put forward,” the governor said.
Wake said that, as a judge, he cannot comment on the personal attacks.
But Ducey press aide Ptak, asked if it was unfair of Ducey to attack a judge who is unable to respond, responded, “hell, no.”
“He stopped being a judge and started being a politician,” said Ptak, saying Wake “had an agenda.”
“He can’t hide behind his robe,” he continued. “If he’s going to throw punches, he can take them.”
Wake got to the bench in 2004 after being nominated by Republican President George W. Bush, with the recommendation of the state’s two GOP senators, John McCain and Jon Kyl.
The governor, however, brushed aside a question about the judge’s Republican credentials.
“This is an activist judge who solicited this lawsuit because he didn’t like Proposition 123,” Ducey responded.
The record, however, shows that it was an individual, Michael Pierce, who filed the suit on his own in May 2016, without legal help, after the approval of Prop 123.
What Wake did, however, may have kept the case alive by getting legal help for Pierce.
Andrew Jacob told Capitol Media Services he had run into Wake about five years ago at an event at a law firm, telling the judge that he was partially retiring and only going to work part time.
“I offered that if he ever had a civil litigant who had a case that had merit and needed help with it, I would consider volunteering my time,” Jacob said.
It wasn’t until some time later, the attorney said, that Wake called, informed him of the basics of this case and asked if he would pick it up.
“He thinks this case has some merit to it and the litigant really didn’t know what to do with it for the next step,” Jacob recalled of the conversation. Jacob said he agreed, at which point he said that the only thing Wake did is give him the case number to review the pleadings filed so far and get in touch with Pierce.
A review of Wake’s 15 years on the federal bench by Capitol Media Services shows the judge decided a number of controversial issues.
In some he ruled in favor of the state, like a 2008 decision rejecting challenges to a new state law approved by the Republican-controlled Legislature that provided for the suspension and revocation of the business licenses of employers who knowingly hired undocumented workers.
But Wake has also blocked state and local officials from prosecuting a Flagstaff man who produced and sold antiwar T-shirts with the names of U.S. soldiers killed in Iraq, calling it “core political speech fully protected by the First Amendment.”
He also barred enforcement of a law that made it a crime to panhandle, saying the simple act of asking for money or food is protected by the First Amendment. And he said Arizona cannot refuse to provide family planning funds to Planned Parenthood solely because the organization also performs abortions, saying that conflicts with federal protections for Medicaid patients to choose their own care providers.
More recently, Wake struck down Arizona’s child molestation law because it read that once the state proves a defendant knowingly touched the private parts of a child – even by a parent changing a diaper or a doctor examining a child – the burden falls on the accused to prove there was no sexual intent.
And he ruled that inmates suing the state over allegations of poor health care can proceed on a class-action basis.
Before being appointed to the court, Wake argued for Republican interests.
He represented members of the state’s GOP congressional delegation which challenged the lines drawn by the Legislature – then with a Democrat Senate and Republican House – for congressional districts.
A decade later Wake was representing the Arizona Republican Party in its fight over lines drawn by the newly created Independent Redistricting Commission.
Even after taking the bench Wake found himself siding with Republicans on a redistricting dispute.
That fight erupted after the five-member commission crafted legislative districts but in a way so that the population of each was not equal. Instead, Republicans were added to a district that already had a majority of GOP voters, leaving other adjoining districts with fewer overall voters but a better chance for a Democrat to win.
That case went to a three-judge panel with the majority concluding there was evidence that “partisanship played some role in the design of the map.” But two of the judges said that the lines were manipulated in “good-faith efforts to comply with the Voting Rights Act.”
Wake was the dissenting judge, writing that “it does not take a Ph.D. to see this stark fact of intended party benefit.”
In private practice, Wake represented track owners who tried, unsuccessfully, to block Gov. Jane Hull from signing compacts with Native American tribes giving them the exclusive right to operate casino gaming.
And he also played a role in getting the Arizona Supreme Court to allow a juvenile justice initiative to be placed on the 1996 ballot.