State Supreme Court rejects Attorney General Brnovich’s attempt to redefine scope and power
The Arizona Supreme Court on Wednesday largely upheld a lower court’s decision to toss out a lawsuit challenging how Arizona universities handle in-state tuition — a blow to Attorney General Mark Brnovich, who’d fought to redefine the scope of his power throughout the case.
Brnovich did prevail, however, in getting one part of his suit against the Arizona Board of Regents a new day in court: The justices declared a claim involving tuition for students without legal immigration status had been dismissed “prematurely.”
Brnovich sued the board in September 2017, alleging the regents had flouted a constitutional provision requiring state universities to be as close to free as possible. Over 15 years, the lawsuit said, the regents had raised tuition from about $2,600 a year to as much as $12,228 a year for in-state students.
He also claimed the board had violated Proposition 300 — a 2006 ballot measure barring students without lawful immigration status from receiving public benefits — by offering instate tuition to students in the country illegally. He sought to recover public money he alleged was “illegally spent” subsidizing tuition for those students.
A Maricopa County Superior Court judge dismissed the suit in April 2018,
saying Brnovich lacked the authority to sue the regents without the permission of the Arizona Legislature or governor. The Court of Appeals upheld that decision a few months later.
But Brnovich pressed on, countering that state law gave his office broad power to initiate cases “on behalf of the public interest.”
The Supreme Court shot down that claim in its Wednesday opinion, contending that accepting Brnovich’s argument would “mark a significant expansion in the Attorney General’s power that neither the constitution nor legislature contemplated.”
The lower courts acted appropriately in dismissing the parts of the lawsuit involving in-state tuition rates for legal residents, it said, because Brnovich had no authority to pursue them.
It disagreed with the trial court’s decision to throw out the portion of the lawsuit involving in-state tuition for students without legal status, though, pointing to a state statute that specifically gives the attorney general power to “recover illegally paid public monies.”
The trial court should have considered Brnovich’s request for reimbursement on behalf of the public, the justices said, and should do so now — even though ABOR has stopped offering instate rates to those students.
The Supreme Court sent that portion of the case back to Maricopa County Superior Court.
In a series of tweets published shortly after the high court released its opinion, Brnovich said he was pleased the justices had “made it clear the AG can initiate litigation when there’s an illegal payment of public monies.”
“This decision is important as we move forward with our case next week to hold (Arizona) public universities accountable for sweetheart real-estate deals,” he said, referring to another lawsuit his office filed against ABOR involving an Omni hotel on Arizona State University’s Tempe campus.
“I will always fight on behalf of hardworking Arizona taxpayers.”
Brnovich did not acknowledge the defeat of one of his team’s central claims, however — the contention that a 1960 decision hindering his ability to initiate certain lawsuits should be overturned.
In that case, Arizona State Land Department v. McFate, the Supreme Court concluded the attorney general could unilaterally file a lawsuit on behalf of Arizonans only in specific instances outlined by the Legislature. Otherwise, the court said at the time, he needed the governor’s rubber stamp to sue state agencies.
Several prior attorneys general — including Jack LaSota, Robert Corbin, Terry Goddard and Tom Horne — submitted a brief in support of Brnovich, urging the court to overturn the McFate ruling and highlighting times when the attorney general and governor may be at odds.
“If specific legislation were required to permit the Attorney General to challenge ABOR’s tuition setting, then the Legislature (who confirms the Regents) and the Governor (who appoints the Regents) may decline to enact the legislation and avoid any check on ABOR’s power,” they argued.
“The requirement that public university education ‘shall be as nearly free as possible’ could be rendered meaningless or, at the least, unenforced and ignored.”
While the current justices acknowledged the McFate ruling was “flawed,” they argued they could correct those flaws — for example, revising the definition of “prosecute” to include initiating a lawsuit — “without overturning its sound core holding.”
State law “does not provide the Attorney General with authority to right constitutional wrongs committed by state officials and agencies,” they concluded.
In a statement released Wednesday afternoon, board chair Larry Penley applauded the court’s decision to dismiss what he described as “Brnovich’s overreaching attempt to expand his office’s authority.”
“While this case stems from a tuition lawsuit the Attorney General filed against the board nearly three years ago, it ultimately was about the Attorney General’s demand for unfettered authority to sue whomever he wants whenever he wants — even his own clients,” he said.
Instead, Penley said, the justices “affirmed the wisdom of the Arizona Constitution that clearly and appropriately limits the authority of the Attorney General and ensures a system of checks and balances that preserves the intended scope of his power.”
Regarding the portion of the lawsuit returned to trial court, Penley noted the regents had stopped offering in-state tuition to students without legal status in 2018. He said the board was “confident this remaining issue will be resolved in our favor.”
“The decision eliminates the distraction created by this lawsuit and will allow the board to devote its full attention to its Constitutional responsibilities,” he said.