PHOENIX — Maricopa County Superior Court Judge Patricia Starr will not rescind her ruling that state schools chief Diane Douglas acted illegally in trying to control the actions of the Board of Education.
In a brief order, Starr rejected the contention of Douglas’ lawyer that there was no basis for her July ruling that the superintendent of public instruction lacks the authority to tell the board how to deal with its employees. That includes a bid by Douglas to stop the board from taking its workers out of Douglas’ offices and putting them into separate board offices.
And Starr rejected Douglas’ contention that she — and not the board — gets to decide who to hire and fire as board employees.
Attorney Steve Tully, who represents Douglas, filed for relief late Thursday at the Court of Appeals. But he said that Starr’s new order could make that more difficult.
In a lawsuit filed earlier this year, Douglas asked Starr to rule she was in charge of board employees. But the judge ruled in July there was no basis for her to intercede.
For example Starr said she would not second-guess the board’s decision to rent new office space for its workers. She called that “a political question not appropriate for judicial resolution.”
And the judge said since Douglas was not firing anyone, at least not at the time, she could not rule on whether the schools chief acted illegally.
The problem, Tully said, is the judge still went on to say why she thinks Douglas was acting contrary to law, even saying that Douglas has no authority to fire board employees. That, said Tully, was beyond Starr’s power.
“Once you say ‘I don’t have jurisdiction,’ that ends the inquiry,” Tully said. He said that Starr instead went on to issue an “advisory opinion,” something the lawyer said judges in Arizona are not permitted to do.
Starr, in her new order, rejected Tully’s arguments.
The wording of Starr’s order is important because that becomes the basis for Douglas’ appeal.
Tully said if the order is limited only to the legal questions not now being legally “ripe,” then he can argue to the appellate court that still gives him a chance to raise those issues again at some point in the future. But now he has to get the appellate court to consider — and overturn — Starr’s ruling that Douglas has no authority over the board or its employees.
But board attorney Mary O’Grady said there’s a good reason to keep Starr’s opinions in the ruling. She said if the judge had simply said the case was not ready to be heard, that would allow Douglas to continue to act contrary to law.
“That is not mere speculation,” O’Grady wrote in her arguments to Starr, saying Douglas is “actively ignoring the court’s reasoning.”
O’Grady said Douglas continues to believe she fired the board’s executive director and her assistant in February “and has refused to communicate with them and ignored their communications.”
It was that February incident that started the fight. Douglas said they were “liberal” staffers who were blocking her campaign promise to eliminate the Common Core academic standards.
When Gov. Doug Ducey interceded, Douglas did not pursue the matter. But that only led to new fights over control of board employees and where they worked, with the board deciding to move its workers to new offices, culminating in Douglas filing suit and asking Starr to rule in her favor.
