Ducey criticism of judge inappropriate, dangerous

The following column is the opinion and analysis of the writer.

By Frances Lynch

SPECIAL TO THE ARIZONA DAILY STAR

Arizona Gov. Doug Ducey made the wrong move recently in verbally attacking a United States District Judge appointed by former President George W. Bush. Ducey called publicly for United States District Court Federal Judge Neil Wake to step down.

According to the Capital Times, Ducey stated 'Judge Wake puts on a robe in the morning and thinks he's God, but he's not.' Ducey's comments were prompted by a court decision in which Wake wrote that the governor and state acted illegally in taking money from an education trust account without getting required congressional approval. 'It's time for Judge Wake to retire. He's an embarrassment to the legal community.'

Judge Wake is 71, younger than our country's current president. But even so, what's the problem with our governor criticizing the judge? After all, this is the United States of America and everyone has a First Amendment right to criticism of any branch of the government. But irresponsible criticism by someone in a position of actual authority can undermine our system of law.

Ducey's criticism of a particular judge could potentially cause the removal of judges from office or could influence court decisions. This is incompatible with judicial independence and the rule of law.

Legislators or governors such as Ducey may base their decisions on focus groups or opinion polls, but judges may not. Judges are expected to enforce the law, even if that application is distasteful to some. Judges are charged with a duty to protect our rights as citizens, regardless of the popularity, or lack thereof, of such rulings. Ducey also stated, 'There are third-year law students at ASU that can write a more coherent opinion than the one that he(Wake) put forward.' While that is more of a style criticism, which may have little basis because Ducey is not a lawyer, Wake holds a law degree from Harvard Law School.

Nor is Judge Wake a stranger to criticism. In 2008, Wake found himself embroiled in controversy when he ordered Maricopa County Sheriff Joe Arpaio to fix unconstitutional conditions in the county jail system.

Wake ordered that inmates in initial processing should get adequate food, rather than the moldy, rotten food that inmates had previously received. Wake ruled that inmates were entitled to a bed or mattress and that ill inmates must be given their prescribed medicines.

It may be that Ducey's criticism fails to consider the underlying facts and the legal principles which governed the judge's ruling. The attack by Gov. Ducey on Judge Wake perhaps did not take into account the overall performance of the judge while in office.

Nevertheless, for the governor to be making such accusations is problematic. Arizona's Constitution provides for the appointment of a nonpartisan-nominating commission to recommend to the governor candidates for appointment to the Arizona Supreme Court and Court of Appeals.

The Constitution requires the governor to 'endeavor to see that the commission reflects the diversity of Arizona's population.' The governor then makes the decision to appoint a judge. While Judge Wake is a federal judge and so his appointment is for life, the chilling effect that Ducey's comments may have on State Court judges is apparent.

If a court decision is wrong, if it misses the mark, there is a procedure for addressing it. That procedure is taking the case to a higher level court, such as the 9th Circuit Court of Appeals in the federal system.

The procedure is not to use the governor's office to taint the public's view of a given judicial officer. Arizona can do without that.

Frances Lynch @ftlynch is a trial attorney in Tucson and was a fellow with the Op-Ed Project in 2018-19 class of Tucson Public Voices.

Frances Lynch