A pair of House Republicans want Attorney General Terry Goddard to come before a budget oversight committee to explain why the state is paying for an attorney they say is not defending the interests of the state in the Flores case and could have cost the state $300 million in fines.
House Majority Leader Steve Tully, R-11, and Rep. Tom Boone, R-4, wrote a letter to Joint Legislative Budget Committee Chairman Sen. Robert Burns, R-9, late last month asking him to bring Mr. Goddard, a Democrat, into the next meeting to answer questions.
“Over the last several months, it seems like it’s gotten worse and worse and worse, with the state not defending itself through the Attorney General’s Office,” Mr. Boone told Arizona Capitol Times.
A spokeswoman for Mr. Goddard said the office wouldn’t comment on the letter or its contents.
“We’re not going to answer questions [from reporters] before we’ve answered questions from JLBC,” Andrea Esquer said. She added that Mr. Goddard had not been invited to any future JLBC meetings.
The culmination of Mr. Boone’s concerns, he said, came in late July, when independent counsels for the Legislature and the Superintendent of Public Instruction argued against the plaintiff’s attorney and the Attorney General’s Office before the 9th Circuit Court of Appeals.
The court ultimately overturned several lower court rulings, including a contempt order and $21 million in fines that accompanied it. Mr. Boone says that if the Appeals Court had upheld the lower court ruling — as the plaintiff and Jose Cardenas, the AG’s outside counsel had argued for — the fines could have been reinstated retroactively, costing the state as much as $300 million.
Mr. Boone says the state has paid Mr. Cardenas, a partner at Valley law firm Lewis & Roca, about $300,000 in fees this year.
“Why should we be paying an attorney $300,000 when, if the attorney prevails, it could have cost us $300 million? That’s absurd!” Mr. Boone said. “To go and actually attend the [Appeals Court] hearing and argue against the state’s appeal… he’s doing just the opposite of what I think he should be doing.”
At the time, Mr. Goddard said he would not defend H2064 (Laws 2006, Chapter 4), which was passed to satisfy a 2000 court ruling in the Flores v. State of Arizona lawsuit, because he felt it violated federal education law by using federal education funds to supplant, not supplement, state funding for English language learner programs.
Mr. Tully, who is himself an attorney, said he was “outraged” that Mr. Goddard would support fining the state and said it was an ethical violation to do so.
“I don’t know how one does that and complies with the oath of office and complies with the ethical obligation to vigorously defend your clients,” he said. “There can be no question that he’s trying to lose the case, that he wants to lose the case.
“That is bizarre and outrageous.”
Whether or not an attorney general disagrees with a state law, Mr. Tully said the duty of the office is to uphold state laws regardless. Since H2064 became law, he said Mr. Goddard should have put aside his personal objections and defended the law. At the very least, he said, the AG shouldn’t have paid someone to argue against it.
“If that’s how things are going to be done, the whole system — the checks and balances you learn about in civics class — is broken,” Mr. Tully said.
Letter also questions hiring of outside counsel
The two-page letter, dated Aug. 29, also questions whether the state should still be paying for outside counsel in the 14-year-old Flores v. State of Arizona lawsuit, in which the state was found in violation of federal law for underfunding English acquisition programs.
When the litigation began in 1992, W. Scott Bales, Arizona’s solicitor general at the time, represented the state before the federal District Court. When Mr. Bales entered the private sector and began litigating for Lewis & Roca, then-Attorney General Janet Napolitano retained Mr. Bales as the state’s attorney for the case because he had intimate knowledge of the history of the case.
When Mr. Bales was named to the Arizona Supreme Court last year, Mr. Goddard decided to hire Mr. Cardenas as outside counsel on the matter. The letter questions whether Mr. Cardenas, who focuses “primarily on transactional and commercial litigation” according to the Lewis & Roca Web site, was a appropriate choice to defend the state.
Mr. Burns did not return phone calls seeking comment and it is not known if he will ask Mr. Goddard to come before JLBC to answer questions.
Mr. Burns said he had not yet decided whether or not JLBC would ask Mr. Goddard to answer questions before the committee. He said he was working with staff to decide the best course of action, but wanted to proceed cautiously.
“I just think we need to count to 10 here before we jump into it,” he said. “I think we need to understand what the repercussions are.”
Mr. Burns said many of the points raised by the letter are valid and of concern to many lawmakers.