A federal appeals court has overturned a ruling that could have affected the ability of Gov. Doug Ducey and future governors to tap a special education trust account to funnel more cash into schools.
Neil V. WakeIn a unanimous decision Tuesday, a three-judge panel of the 9th Circuit Court of Appeals said District Court Judge Neil Wake, a President Bush appointee, never should have heard the complaint by Michael Pierce. He charged that Ducey had acted illegally in tapping the fund, created by Congress in 1912 when Arizona became a state, after voters approved Proposition 123 in 2016 without first getting congressional approval.
But the appellate judges, consisting of one President Trump appointee and two President Obama appointees, said in an unsigned opinion the only people who have standing to sue under the 1912 Enabling Act are those who actually have incurred an “injury in fact.” And Pierce conceded that his only injury is because he is a resident of Arizona and the state is harmed if more money is taken from the trust than Congress allowed.
That, the appellate judges, said, means Pierce had no standing to sue in the first place.
Doug DuceyThey acknowledged, as did Wake, that Ducey continues to distribute funds according to the terms of Proposition 123. But they pointed out that, in the interim — though not before voters approved the ballot measure — Congress altered the federal law to effectively and retroactively authorize what Ducey had done.
Finally, the appellate court said Wake never should have barred Ducey — or future governors — from again altering the distribution formula absent first getting congressional approval. They said that legal dispute is not “ripe for adjudication” because it is based on events that may or may not ever occur again.
Proposition 123 was Ducey’s plan to put more dollars into K-12 education without hiking taxes.
In essence, the governor asked voters to tap the special trust 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 Enabling Act. About eight million acres remain.
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.
Pierce sued, contending that any change in the distribution required Congress to amend the Enabling Act. There also was the fact that, in boosting withdrawals through 2024, it would leave less in the trust at that point than if the formula were not changed.
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.
Wake acknowledged that, at least as far as Proposition 123 is concerned, the matter now is moot, what with Congress 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.
Ducey, not wanting that restriction for any successor, then sought to void Wake’s ruling.
But the legal dispute also took on an unusual and unexpected personal turn as the governor lashed out at the judge on a personal level.
“Judge 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.
Gov. Doug Ducey or whoever succeeds him can’t conduct a future financial raid on a school trust fund account without first getting congressional approval, a judge has ruled.
In a decision published Tuesday, Maricopa County Superior Court Judge John Hannah acknowledged that Congress did approve — belatedly — the 2016 measure pushed by Ducey to tap the trust to provide more immediate cash to fund K-12 schools. That resolved earlier litigation about the power of the state to change the funding formula without Congress first amending the Enabling Act that allowed Arizona to become a state and gave it lands it holds in trust for schools.
But Hannah said those extra dollars run out in 2025. And legislative budget staffers estimate that will cut state aid to schools at that point by more than $237 million a year.
What that means, the judge said, is that there “probably will be another attempt to change the distribution formula, relatively soon.”
“And that effort probably will be undertaken without congressional approval, unless there is a court order that says the Enabling Act requires consent,” Hannah said.
“Gov. Ducey does not want a future governor to be bound by judicial overreach,” he said. “And, in this case, that seems to be what’s going on.”
But Karamargin said the governor and his legal staff were still reviewing the ruling on Tuesday before deciding whether to appeal.
Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)
Proposition 123 was Ducey’s plan to deal with a 2013 Arizona Supreme Court ruling that the state had ignored a 2000 voter-approved mandate to increase state aid to schools annually to keep pace with inflation.
Ducey, who took office in 2015, declined to increase taxes to comply with that ruling. Instead he came up with a plan to tap into a special trust funds that consists of the money the state earns from the sale and lease of about 10 million acres of land Arizona was given by the federal government when it became a state.
About eight million acres remain.
Under normal circumstances, the beneficiaries of the trust — in this case, public schools — would get 2.5% of what is there.
Ducey’s proposal, approved by voters at a special election in 2016 by a 51-49% margin, boosted that to 6.9% in a move the governor said would funnel an extra $3.5 billion into schools over a 10-year period.
Michael Pierce (Photo by Carmen Forman/Arizona Capitol Times)
Phoenix resident Michael Pierce sued, contending that any change in the distribution required Congress to first amend the Enabling Act. There also was the fact that, in boosting withdrawals through 2024, it would leave less in the trust at that point than if the formula were not changed.
Ducey disagreed.
But facing litigation, he eventually did get congressional approval. And once that happened, the 9th Circuit Court of Appeals dismissed the case as moot.
That, however, still leaves the question of what happens when the extra money runs out.
Attorneys for the governor told Hannah there is no reason for him to consider that issue, at least not now. They said Pierce’s claim “is premised on a long line of ‘what ifs,’ which might occur at some future date that could be decades from now — or might never happen.”
That argument actually worked in an earlier case where the 9th Circuit, citing that belated congressional action, concluded there was nothing more to litigate about Proposition 123.
But Hannah agreed with Andrew Jacob, attorney for Pierce, that the governor’s argument misses the larger point.
The judge said it is true that the original challenged conduct — Ducey proceeding with the fund transfers without congressional approval — did cease when federal lawmakers acted. But he said a claim becomes moot “only if the relevant events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”
And that, Hannah said, is not the case here.
“The facts here do not clearly show that Arizona state officials are unlikely to try again to change the distribution formula without congressional consent,” the judge wrote.
John Hannah
In fact, Hannah said, the reverse may be a more realistic scenario.
He said the Arizona Constitution makes it “very difficult” to raise taxes to make up for the lost revenues, given that it would take a two-thirds vote of both the House and Senate as well as gubernatorial consent. That, said Hannah, leaves a future version of Proposition 123 — and its increase in taking more money from the school trust fund — as “the most obvious alternative.”
“Here the governor has demonstrated power to determine whether the state of Arizona seeks and obtains congressional approval for changes to the School Trust Fund distribution formula,” the judge wrote. More to the point, Hannah said, the evidence shows that the only reason Ducey eventually went and sought congressional approval was to undermine the original federal court lawsuit.
“The agreed-upon facts demonstrate a real possibility that the same thing will happen again,” Hannah wrote. “Under these circumstances, it would be unfair to the plaintiffs, and a substantial waste of judicial resources, to dismiss this case as moot and force the plaintiff to start over.”
Ducey’s reaction to the latest ruling pales in comparison to the blast the governor lobbed at a federal judge who had reached a similar conclusion two years ago about approving the financial maneuver without first getting congressional blessing.
“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 Patrick Ptak, Karamargin’s predecessor, said at the time that 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.
Hannah was tapped for the state bench in 2005 by Democratic Gov. Janet Napolitano.
Gov. Doug Ducey acted illegally in pushing his 2016 plan to take $2.2 billion over a decade for K-12 education out of a trust account without first getting congressional approval, a federal judge has ruled.
But Neil Wake won’t order the funding halted, at least not now.
In a sharply worded decision unveiled Tuesday, Wake said Ducey crafted the plan to make up for the fact that the state had ignored voter-mandated requirements to properly fund schools. That solution became Proposition 123, which voters approved in 2016.
But Wake said that the state did not first obtain congressional approval for the shift. He said that is necessary because the federal Enabling Act that made Arizona (and New Mexico) into a state in 1912 gave it lands to hold in trust for schools.
Neil V. Wake
“The state and its officers took those monies illegally and spent them,” Wake, a 2004 appointee of President George W. Bush, wrote.
More to the point, that federal law that Wake said Ducey and lawmakers ignored allows the state to use only the interest off the money earned. The idea was to preserve the body of the trust — and the interest that would earn for future generations.
By contrast, Prop 123 actually withdraws more than the earned interest, meaning the size of the trust, designed by Congress to be a permanent, reliable source of education dollars, actually is worth less now than it would have been without the ballot measure.
Current figures obtained by Capitol Media Services from the treasurer’s office show the current value of the trust at nearly $6.1 billion; without the extra withdrawals it would be worth about $1 billion more. That, in turn, will mean less in interest earnings for K-12 education once the extra distribution ends as scheduled in 2025.
The ruling has no immediate effect on school funding. It allows the state to continue to draw more than $200 million a year out of the trust to fund education through 2025.
Doug Ducey
But Wake barred the state from making additional diversions after that. And he said such a maneuver likely will be necessary given what he said has been the failure of lawmakers for years to properly fund education.
The ruling should come as no real surprise.
Wake had issued a similar ruling last year. But attorneys for Ducey effectively sought to have it set aside because, while the lawsuit was pending, the governor got a provision inserted into a 2,400-page federal appropriations bill giving the required congressional approval.
But the judge said that didn’t retroactively legalize what was an illegal act in the first place, especially as Ducey was still arguing that congressional approval wasn’t necessary in the first place and that Congress was acting on its own.
“Congress did not act in a vacuum,” Wake said, saying Ducey stepped in when the case was not going his way.
“The governor’s assertion that he somehow was not involved is disingenuous,” the judge wrote. “The court is not fooled.”
The ruling drew derision from gubernatorial press aide Patrick Ptak who called it “incoherent,” “poorly reasoned” and “an example of massive judicial overreach and activism.”
“Rarely before have we seen such a blatant disregard of facts, precedent and common sense to push forward an agenda of one biased, activist judge,” he wrote, vowing an appeal.
The record, however, shows that Ducey was on notice of legal problems even before he had Prop 123 put to voters in 2016: Jeff DeWit who at the time was state treasurer, told lawmakers they could not do what the governor was proposing.
Jeff DeWit
At the root of the issue is a 2013 Arizona Supreme Court ruling that the state had ignored a 2000 voter-approved mandate to increase state aid to schools annually to keep pace with inflation.
Ducey, who took office in 2015, declined to increase taxes to comply with that ruling. Instead he and legislative leaders came up with a plan to tap into the special trust fund that consists of money the state earns from the sale and lease of about 10 million acres of land Arizona was given by the federal government when it became a state.
As originally enacted in 1912, schools were to get the interest earned, leaving the “corpus” of the fund untouched.
Proposition 123, however, set the distribution at 6.9 percent, regardless of how much the fund actually was earning in interest, to generate $2.2 billion over a decade. That meant actually taking more out than interest earned, cutting into the trust fund itself.
The plan had broad support in the education community. But the judge said, no one bothered to first seek congressional OK.
That led to the lawsuit by Michael Pierce and Wake’s first 2018 ruling.
Now, unless overturned, this new decision precludes a similar change in trust distributions in the future without first going to Congress. And Wake, in his ruling, said that the history of education funding in Arizona strongly suggests that there will be a new effort to raid the trust in 2025 when Prop 123 dollars run out.
“Arizona has followed a long-term policy of cutting funding for public education,” the judge wrote, rather than raise taxes.
By 2025, Wake said, “the state will be habituated to the generous distributions from the School Land Trust to make up for decades of tax cuts and other refusal to fund current education from taxes.”
And Wake said a future bid to tap the trust is even more likely because of the difficulty in raising the revenues from taxes that state courts have said are necessary to properly fund K-12 education.
The judge suggested some of that is due to a provision in the Arizona Constitution.
He said lawmakers can, and have cut taxes with a simple majority vote. Yet it takes a two-thirds vote to raise them. That, said Wake, means a minority of lawmakers can effectively block raising new revenues, forcing the full Legislature to look to alternatives like taking extra dollars out of the trust.
That question of what happens after 2025 was on the mind of state schools chief Kathy Hoffman.
“The next step our state must take is finding a sustainable revenue source that will fully restore education funding to pre-recession levels,” she said in a statement.
“We do need a sustainable funding source,” agreed Senate President Karen Fann. But the Prescott Republican said she supports an appeal of Wake’s ruling, saying lawmakers need the flexibility to be able to use trust dollars as needed
Sen. Martin Quezada, D-Glendale, said the ruling is not really a surprise.
“This is what happens when politicians refuse to raise needed revenues and have to come up with legally questionable ways of funding Arizonans’ needs and values,” he wrote in a Twitter post. “We need leaders who will make tough decisions and do what is needed to fund our schools.”
Aside from arguing the judge’s decision is legally flawed, Ptak also alleged some impropriety, saying Wake personally recruited an attorney to represent the plaintiff even after he failed to appear in court.
“The judge indicated a personal agenda against the will of the people.” Ptak said.
Andrew Jacob acknowledged he took the case after going into partial retirement, having told Wake previously that he’d been willing to work for free on any case where a self-represented plaintiff needed help in a case of some significance.
This case, said Jacob, fit that description, with Pierce having no legal counsel. But Jacob said Wake never discussed the specifics of the case with him.
Editor’s note: This story has been revised to include information on the recent history of education funding and include comments from Kathy Hoffman, Karen Fann, Martin Quezada, and Andrew Jacob.
In this file photo, Arizona Gov. Doug Ducey talks to reporters outside the West Wing of the White House in Washington, Wednesday, April 3, 2019, following his meeting with President Donald Trump. (AP Photo/Susan Walsh)
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.
Neil V. Wake
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.
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
Gov. Doug Ducey’s office paid nearly $700,000 to private law firms in a losing effort to defend an embattled ballot initiative that increased school funding disbursements from the state land trust.
The Governor’s Office paid five lawyers at two firms $695,077 to argue Ducey’s position that the civil suit brought by Phoenix resident Michael Pierce to Proposition 123 lacked merit.
Judge Neil Wake of U.S. District Court ruled last month that previous money transfers under Prop. 123 — a plan created by Ducey to increase school funding — violated federal law because it diverted millions from the land trust without prior authorization from Congress.
Ducey’s outside legal team worked 1,133 billable hours, which amounts to pay of approximately $613 an hour.
Michael Pierce (Photo by Carmen Forman/Arizona Capitol Times)
For comparison, Pierce, 66, filed the lawsuit on his own, and was later aided by Phoenix attorney Andrew Jacob on a pro bono basis.
While Ducey’s general counsel, Mike Liburdi, was involved in the Prop. 123 case, the Governor’s Office hired outside legal counsel to handle in-court appearances, said Ducey spokesman Patrick Ptak.
Ducey’s office paid global megafirm Gibson, Dunn & Crutcher $406,093 for work related to the Prop. 123 case, according to information provided by the Governor’s Office. Ducey retained legal counsel from former U. S. Solicitor General Ted Olsen, who just last month declined to join Trump’s legal team. Matthew McGill, of Gibson Dunn’s Washington, D.C., location, also worked on the case.
The Governor’s Office also retained several lawyers from Phoenix firm Fennemore Craig. Ducey’s office paid $288,983 for the work of attorneys Teresa Dwyer, Timothy Berg, and Kevin Green.
“What’s at stake is $3.5 billion for Arizona schools,” Ptak said. “It’s important for the state to have appropriate legal representation to protect these dollars for our schools, and we will spend whatever is necessary to ensure that happens.”
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’s lawsuit argued that Prop. 123 was illegal because the state should have first received congressional approval for the constitutional amendment before allowing voters to decide on the referendum.
Attorneys representing the state argued that Pierce didn’t have standing to bring the lawsuit, and urged the judge to dismiss the case.
Arizona received congressional approval for Prop. 123 this year — about two years after the ballot initiative passed.
The legal battle over Prop. 123 isn’t over yet. At question now is the $344 million in land trust funds the state disbursed to Arizona schools before receiving congressional approval of Prop. 123.
In his ruling, Wake recommended the parties settle. But if they cannot come to an agreement, the parties will return to court to spar over what is to be done about the $344 million, in which case, Ducey’s lawyers could rack up additional legal fees for the Governor’s Office.
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
A federal judge says Arizona may have to repay at least $344 million to the state land trust because a school funding settlement championed by Gov. Doug Ducey violates federal law.
But the governor’s lawyer says Congress approved the payouts this month.
U.S. District Judge Neil Wake ruled Monday that the payouts under a 2015 settlement of a school funding lawsuit that were approved by voters in 2016 needed priorAi?? Congressional approval.
The case was bought by state resident Michael Pierce shortly after Proposition 123 was approved by voters in May 2016. It allowed increased payouts from the permanent land trust created by Congress at Arizona’s statehood to fund schools, universities and other services.
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Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
A federal judge ruled Monday that the funding scheme used by Gov. Doug Ducey to increase aid to schools is unconstitutional.
In a 35-page order, Judge Neil Wake said the federal Enabling Act that made Arizona (and New Mexico) a state in 1912 and gave it lands to hold in trust for schools allows the state to use only the interest off the money earned. The idea, Wake explained, was to preserve the body of the trust — and the future interest it would earn — for future generations.
But Wake said that Proposition 123, crafted by the governor as a method to settle a years’-old lawsuit over school funding, clearly ran afoul of that federal law.
“Nowhere in the history does anyone request or suggest that Congress give unfettered discretion to either state or that it was abdicating its oversight obligations under either state’s Enabling Act,” the judge wrote.
But Mike Liburdi, the governor’s attorney, said there is a provision buried in recent federal legislation which not only authorizes future payments from the trust that go into the school finance formula but effectively ratifies the $344 million in prior payments that Wake said Monday were illegally made.
“We’re not terribly worried,” said gubernatorial press aide Daniel Scarpinato.
But Wake isn’t the first one to raise the question. In fact, state Treasurer Jeff DeWit told lawmakers in 2016 — before the measure went to voters — that they can’t do what the governor was proposing.
Central to the issue is the nature of the trust.
The federal government gave Arizona 10 million acres when it became a state in 1912 with the restriction that it be held for the benefit of certain beneficiaries, mostly public schools. About 9.2 million acres remain.
There also is about $4.8 billion in the trust made up of the proceeds from sales and leases of the land.
Legislative budget staffers said at the time that, at current withdrawals, the fund would grow to about $9 billion by 2025. But with the additional funds taken out, the account is projected to be $6.2 billion instead.
What made that significant not only for DeWit but also Michael Pierce, who filed the federal court lawsuit, is their contention that such a radical change can be made only by amending the Enabling Act, something that was not done.
In agreeing with Pierce, Wake said it does not matter than the Arizona Education Association, the Arizona School Boards Association and the Arizona Association of School Business Officials supported Proposition 123.
“The schools’ current incentive to get extra money for their current needs is at odds with the interests of future Arizona students,” the judge said. “Congress’s conscious plan to vest all citizens with property rights in the trust was necessary to uphold the trust against collusive violations.”
Liburdi said he believes that when Congress consented just recently to give Arizona authority to take more money out of the trust it approved all of the what was in the 2016 ballot measure. And that, he said, means it gave retroactive approval to the money the state already has distributed.
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