Appeals court rules for Doug Ducey in land trust case

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Gov. Doug Ducey speaks during a news conference about extending his statewide stay-at-home order, Wednesday, April 29, 2020, at the Arizona Commerce Authority Conference Center in Phoenix. (Sean Logan/The Arizona Republic via AP)

A federal appeals court sided Tuesday with Arizona Gov. Doug Ducey in a long-running dispute over whether he broke federal law when he pushed a 2016 ballot measure increasing withdrawals from the state land trust to fund education.

The ruling by a 9th U.S. District Court of Appeals panel overturned a 2018 decision by a Phoenix-based federal judge that said Ducey needed congressional approval to take extra cash from the trust. Just before that ruling was issued, Congress approved the move voters passed through Proposition 123 in 2016.

Judge Neil Wake followed up with an October 2019 order reiterating that Ducey broke the law and said if it happened again he would issue an injunction preventing additional withdrawals.

Tuesday’s appeals court ruling said Wake should never have taken the case because the retired construction worker who sued didn’t suffer harm. The three-judge panel also said once Congress approved the change, the case should have ended.

Wake’s rulings had infuriated the Republican governor. He lashed out at him after last year’s order, calling him an “activist judge”

“Judge Wake puts on a robe in the morning and thinks he’s God, but he’s not,” Ducey said last October. “I want to tell you what everyone down at the courthouse needs to know: It’s time for Judge Wake to retire.”

Ducey didn’t mention Wake in a statement he issued after the ruling came down, only noting that schools are getting new funding under Proposition 123 and calling it “a victory for our public schools and students and the people of Arizona.”

The appeals court ruling ends the federal case. But there is a parallel state case that has been on hold and may now resume, said Andy Jacob, the attorney for plaintiff Michael Pierce.

“We’d be asking for the same relief we got in federal court, which is just a ruling that the state can’t make future changes without going back to Congress and having Congress authorize it,” Jacob said. “And if Congress doesn’t want that responsibility, Congress is free to change the law and say the state can do whatever the state wants.”

Jacob said he’d have to talk to Pierce to see if he wants to proceed.

Arizona has millions of acres of trust land provided by the federal government at statehood. Under the Arizona Constitution and federal law, the land and the income it produces must be used to benefit public schools and other beneficiaries.

Proposition 123 was designed to end a yearslong lawsuit by school districts that were shorted by the Legislature. It increased withdrawals from the land trust to provide that required funding, bypassing previous constitutional limits designed to keep the trust solvent forever.

Republished with the permission of the Associated Press.