Gov. Doug Ducey is asking a federal appeals court to overturn a ruling that could affect his ability and that of future governors to tap a special education trust account to funnel more cash into schools.
But the new filings with the 9th Circuit Court of Appeals contain none of the vitriol that the governor unleashed last year at the trial judge who ruled against him.
In new filings, attorney Theodore Olson contends that U.S. District Court Judge Neil Wake was incorrect in deciding that changes to the formula of how much can be withdrawn from the fund cannot occur without congressional approval. Olson argued to the federal appellate judges that is not the way the federal law reads.
And if that argument doesn’t work, Olson has some alternate legal theories.
The fight is over Proposition 123. That was Ducey’s 2016 plan to put more dollars into K-12 education without hiking taxes.
In essence, the governor asked voters to tap a special fund which consists of money earned from the sale or lease of the 10 million acres of land that the federal government gave Arizona as part of the 1912 Enabling Act that created the state. Under normal circumstances, the beneficiaries of the trust – in this case, public schools – would get a certain percentage of what is there.
Ducey’s proposal sought to more than triple the amount to funnel an extra $3.5 billion into schools for a 10-year period.
Phoenix resident Michael Pierce sued, contending that any change in the distribution required Congress to amend the Enabling Act.
Ducey disagreed. But he eventually did get congressional approval.
But Wake sided with Pierce, saying the governor was wrong to make the withdrawals first and then get the legal blessing of Congress.
In that ruling, Wake acknowledged that, at least as far as Proposition 123 is concerned, the matter now is moot, what with Congress finally ratifying the change. But the judge issued an order barring Ducey – or any other future governor – from making additional changes in the formula without going to Congress first.
What makes that particularly crucial is that the distribution formula automatically returns to pre-2016 levels after 2024. And that means a net reduction in state dollars for education unless the formula is again altered or some other source of cash is found.
And that’s why Ducey wants the 9th Circuit to void Wake’s ruling.
In his new filings, Olson told the appellate judges there’s a simple way to make Wake’s decision go away: conclude that Pierce never should have been allowed in court in the first place.
He said the only people who can claim they were damaged are the beneficiaries of the trust, including schools. In this case, Olson said Pierce has acknowledged that he has no possible eventual interest in the trust fund – other than being a citizen of Arizona who have a property interest in the trust and a concern that the money will not be there for future children.
The 62-page appeal had a far different tone than the personal attacks that Ducey launched last year in the wake of the ruling.
“Judge (Neil) Wake puts on a robe in the morning and thinks he’s God,” the governor said at the time. “But he’s not.”
And it got even more personal.
“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 continued. “He’s an embarrassment to the legal community.”
As a sitting judge, Wake could not comment. But gubernatorial press aide Patrick Ptak said it was not unfair for Ducey to attack a judge who is legally precluded from responding to personal attacks.
Wake got to the federal bench in 2004 after being nominated by Republican President George W. Bush and with the recommendation of the state’s two GOP senators, John McCain and Jon Kyl.