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Brnovich plans to seek change in law he says handcuffs him

In this March 22, 2018, photo, Attorney General Mark Brnovich speaks at the Arizona Technology Innovation Summit in Phoenix. Brnovich wants the Arizona Supreme Court to overturn a 1960 ruling that limits the power of the attorney general. (Photo by Gage Skidmore/Flickr)

In this March 22, 2018, photo, Attorney General Mark Brnovich speaks at the Arizona Technology Innovation Summit in Phoenix. Brnovich wants the Arizona Supreme Court to overturn a 1960 ruling that limits the power of the attorney general. (Photo by Gage Skidmore/Flickr)

Mark Brnovich wants the Arizona Supreme Court to let him be the kind of attorney general he wants to be.

A 59-year-old court ruling has stymied Brnovich’s efforts to – as he puts it – hold the Arizona Board of Regents accountable for their actions, namely the steep increases in tuition rates for students at the state’s three public universities.

But that case, in which Brnovich argues the regents have violated a constitutional provision that tuition must be kept nearly as free as possible, has diverted into a broader discussion of the powers and duties of the elected attorney general.

As Brnovich sees it, he’s an attorney by the people and for the people. Brnovich spokesman Ryan Anderson said it doesn’t matter your political stripes – be you Republican, Democrat, independent or whatever. “If you feel that the attorney general should be an independent umpire, a defender of taxpayers and enforcer of the Constitution and the law,” Anderson said, you should support the Supreme Court overturning their ruling in the case of the Arizona State Land Department v. McFate.

That ruling, made in 1960, affirmed boundaries in state law for what an attorney general can and cannot do.

Specifically, while the justices found that there are “occasions” when the attorney general can unilaterally file a lawsuit on behalf of the state of Arizona – that is, its citizens – “those instances are dependent upon specific statutory grants of power.”

Put another way, Brnovich can’t sue a state agency he believes is acting outside the scope of state law or the Arizona Constitution without the express written permission of the Legislature in law, or the permission of the governor, Anderson said.

That means state agencies or entities can potentially thumb their nose at the law and hide by the court’s ruling in McFate, Anderson said.

It’s an argument that has made Brnovich, a Republican, an odd-couple ally of Democrat Terry Goddard, a former attorney general who shares Brnovich’s vision for what an attorney general could and should be.

Goddard applauded the Arizona Court of Appeals, which on August 20 struck down Brnovich’s attempt to sue the Board of Regents over tuition issue on the grounds that the attorney general has no authority to bring the lawsuit under state law. But in doing so, the appellate court also signaled their belief that the Supreme Court should reconsider the McFate decision that bound them to throw out Brnovich’s lawsuit.

The appeals court basically wrote that “McFate has been screwing up our constitutional system in Arizona for many years,” Goddard told KJZZ on August 23. “Let’s have a clean slate and let the attorney general be what he should be, an attorney for the people.”

Brnovich’s deadline to appeal to the Arizona Supreme Court is September 19.

Not everyone is a fan of Brnovich and Goddard’s mission.

Overturning McFate would level the playing field between Ducey and Brnovich, and all governors and attorneys general to follow, according to Tom Collins, executive director of the Arizona Clean Elections Commission.

“I think it’s consistent with creating opportunities for the attorney general to ensure that his or her policy preferences are put in place, rather than the policy preferences of state agencies which, in one way or another, are responsible to the governor,” Collins said.

That’s explicitly what the Supreme Court in 1960 ruled against, he added.

“The court outright said that in McFate: It’s not a policymaking office,” Collins said. “I think it’s a difference between the attorney general as a criminal prosecutor and ‘top cop’ and the attorney general as legal adviser and attorney for the state and its agencies… Those are not the same framework. They’re not the same idea.”

In pushing for the Supreme Court to reconsider McFate, Brnovich is pushing for a situation in which the attorney general “can just disagree with the state agencies that he’s supposed to represent as their legal counsel,” Collins said.

That doesn’t sit well with Ducey, who has made no bones about his displeasure with certain lawsuits launched by Brnovich. The governor said recently that the limits placed on the attorney general by the court seem justified. 

“My experience has been that these state agencies are the client of the attorney general,” Ducey said.

When asked about the potential that state agencies that report to Ducey, could be sued by the attorney general, the governor said that it “seems to me like that ruling’s there for a reason.”

There’s also the matter of the governor’s own role in holding agencies accountable. In 1960, the justices wrote that it’s the governor’s responsibility to supervise his or her agency appointees, and that the governor “is obligated and empowered to protect the interests of the people and the State by taking care that the laws are faithfully executed.”

Goddard, in an op-ed for The Arizona Republic, isn’t convinced that’s enough to protect Arizonans.

“If the attorney general lacks the power to speak for all Arizonans in enforcing the Arizona Constitution, who will?” Goddard wrote. “What good is a constitutional right if no one goes to court to enforce it?”

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