PHOENIX — 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 money into schools.
In a unanimous decision Tuesday, a three-judge panel of the 9th Circuit Court of Appeals said District Court Judge Neil Wake 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 ÃÛèÖÖ±²¥ became a state, after voters approved Proposition 123 in 2016 without first getting congressional approval.
But the appellate judges, in an unsigned opinion, said 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 ÃÛèÖÖ±²¥ and the state is harmed if more money is taken from the trust than Congress allowed.
People are also reading…
That, the appellate judges said, means Pierce had no standing to sue in the first place.
They 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.
Help theater workers in ÃÛèÖÖ±²¥ and Southern ÃÛèÖÖ±²¥ keep the lights on at home. Donate at
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.
Prop. 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 that consists of money earned from the sale or lease of the 10 million acres of land the federal government gave ÃÛèÖÖ±²¥ 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 Prop. 123 is concerned, the matter now is moot, since Congress ratified the change.
Photos: Remembering Rep. John Lewis, 1940-2020
Obit Lewis

FILE - In this Tuesday, May 16, 2006, file photo, Congressional Black Caucus members, Rep. John Lewis, D-Ga., left, and Rep. Al Green, D-Texas, center, are arrested after a news conference regarding Darfur, at the Sudanese Embassy in Washington. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Lauren Victoria Burke, File)
Obit Lewis

FILE - In this Friday, March 5, 1999, file photo, U.S. Rep. John Lewis, D-Ga., speaks with reporters in Washington. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Khue Bui, File)
Obit Lewis

FILE - In this Sunday March 4, 2007, file photo, from left, Brown Chapel AME Church Pastor James Jackson, Democratic presidential candidate Sen. Barack Obama, D-Ill., U.S. Rep. John Lewis, D-Georgia, and Rev. Clete Kiley, hold hands and sing at the end of a church service in Selma, Ala., on the commemoration of the Rev. Martin Luther King Jr. protest march from Selma to Montgomery, Ala. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Rob Carr, File)
Obit Lewis

FILE - In this Feb. 23, 1965, file photo, Wilson Baker, left foreground, public safety director, warns of the dangers of night demonstrations at the start of a march in Selma, Ala. Second from right foreground, is John Lewis of the Student Non-Violent Committee. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/File)
Obit Lewis

FILE - This Aug. 23, 1963, file photo shows John R. Lewis, National Chairman of the Student Non-Violent Committee, at the National Urban League headquarters in New York. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/File)
Obit Lewis

FILE - In this March 17, 1965, file photo, Dr. Martin Luther King Jr., fourth from left, foreground, locks arms with his aides as he leads a march of several thousands to the courthouse in Montgomery, Ala. From left are: an unidentified woman, Rev. Ralph Abernathy, James Foreman, King, Jesse Douglas Sr., and John Lewis. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/File)
Obit Lewis

FILE - In this March 7, 1965, file photo, a state trooper swings a billy club at John Lewis, right foreground, chairman of the Student Nonviolent Coordinating Committee, to break up a civil rights voting march in Selma, Ala. Lewis sustained a fractured skull. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/File)
Obit Lewis

FILE - In this Thursday, May 10, 2007 file photo, U.S. Rep. John Lewis, R-Ga., in his office on Capitol Hill, in Washington. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Susan Walsh, File)
Obit Lewis

FILE - In this Sept. 6, 2012, file photo, U.S. Rep. John Lewis, of Georgia, speaks to delegates at the Democratic National Convention in Charlotte, N.C. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Lynne Sladky, File)
Obit Lewis

FILE - In this Friday, Dec. 6, 2019, file photo, civil rights leader U.S. Rep. John Lewis, D-Ga., is extolled at an event with fellow Democrats before passing the Voting Rights Advancement Act to eliminate potential state and local voter suppression laws, at the Capitol in Washington. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/J. Scott Applewhite, File)
Obit Lewis

In this June 7, 2020 photo provided by the Executive Office of District of Columbia Mayor Muriel Bowser, Mayor Bowser and John Lewis look over a section of 16th Street that's been renamed Black Lives Matter Plaza in Washington. The White House is in the background. Lewis, a lion of the civil rights movement whose bloody beating by Alabama state troopers in 1965 helped galvanize opposition to racial segregation, and who went on to a long and celebrated career in Congress, died. He was 80. (Khalid Naji-Allah/Executive Office of the Mayor via AP)
Obit Lewis

In this June 7, 2020 photo provided by the Executive Office of District of Columbia Mayor Muriel Bowser, John Lewis looks over a section of 16th Street that's been renamed Black Lives Matter Plaza in Washington. The Washington Monument and the White House are visible in the distance. Lewis, a lion of the civil rights movement whose bloody beating by Alabama state troopers in 1965 helped galvanize opposition to racial segregation, and who went on to a long and celebrated career in Congress, died. He was 80. (Khalid Naji-Allah/Executive Office of the Mayor via AP)
Obit Lewis

FILE - In this Tuesday night, Sept. 3, 1986, file photo, John Lewis, front left, and his wife, Lillian, holding hands, lead a march of supporters from his campaign headquarters to an Atlanta hotel for a victory party after he defeated Julian Bond in a runoff election for Georgia's 5th Congressional District seat in Atlanta. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Linda Schaeffer, File)
Obit John Lewis

FILE - In this July 2, 1963, file photo, six leaders of the nation's largest black civil rights organizations pose at the Roosevelt Hotel in New York. From left, are: John Lewis, chairman Student Non-Violence Coordinating Committee; Whitney Young, national director, Urban League; A. Philip Randolph, president of the Negro American Labor Council; Martin Luther King Jr., president Southern Christian Leadership Conference; James Farmer, Congress of Racial Equality director; and Roy Wilkins, executive secretary, National Association for the Advancement of Colored People. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Harry Harris, File)
Obit Lewis

FILE - In this Wednesday, Oct. 10, 2007, file photo, with the Capitol Dome in the background, U.S. Rep. John Lewis, D-Ga., is seen on Capitol Hill in Washington. Lewis, who carried the struggle against racial discrimination from Southern battlegrounds of the 1960s to the halls of Congress, died Friday, July 17, 2020. (AP Photo/Lawrence Jackson, File)
On Twitter: @azcapmedia