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Brnovich asks Supreme Court to allow him to sue regents

Mark Brnovich (Photo by Gage Skidmore/Flickr)

Mark Brnovich (Photo by Gage Skidmore/Flickr)

Attorney General Mark Brnovich is making a last-ditch effort to get the right to sue the Arizona Board of Regents over what he contends is the unconstitutional tuition at the state’s three universities.

Brnovich on Wednesday asked the Arizona Supreme Court to overturn lower court rulings which concluded he needs specific legal authority to bring such a lawsuit, something the judges say he does not have. And the only other way Brnovich can sue, the judges said, is if he gets permission from Gov. Doug Ducey, permission the governor has so far withheld.

In the new filings, Brnovich conceded the lower courts were legally required to rule against him because of a prior, precedent-setting ruling by the high court limiting the authority of the attorney general to go off and file suit on his own.

But Brnovich contends that 1960 ruling was incorrect, especially given that he, like the governor, is directly elected by voters. And now he wants to give the justices a chance to overturn that precedent – and clear the way for his lawsuit.

Even if the high court sides with him, that doesn’t mean he wins the lawsuit.

All that would do is send him back to trial court, with the burden on him to prove that the way tuition currently is set is unconstitutional. And that will get a legal fight from the regents.

The underlying fight is over contentions by Brnovich that the regents, in allowing tuition to increase by more than 300 percent since 2002, are violating a constitutional mandate that instruction be “as nearly free as possible.” He said the hikes far outstrip inflation overall and even increases at other public universities.

Board members have argued that the sharp price hikes became necessary because of cuts made in state funding.

Legislative budget reports show that a decade ago per-student aid from the general fund was $7,212; for the current year the figure is $4,027. And if inflation is factored in, current aid is worth only $3,517.

Brnovich contends that tuition has gone up more than the reduction in state aid.

But ultimately the lawsuit comes down to the question of whether the regents, in running the university system, are complying with that “nearly free” mandate.

He wants a court to rule that the only legal way to set tuition is determine the cost of education, subtract available state aid and come up with a bottom line. Instead, Brnovich has argued, the regents consider everything from how much other similar state schools charge to how much financial aid is available.

But for Brnovich to make those arguments, he first needs the Supreme Court to decide that he has a right to sue.

In Wednesday’s filings, Brnovich told the justices that they need to decide this “critical question about the rule of law and separation of powers in Arizona.”

“This court has held, consistent with statutory authority, that the attorney general may go to the courts for protection of the rights of the people,” he said.

“Such authority is necessary to protect constitutional rights that would otherwise go unenforced,” Brnovich said. And he said having that authority to sue “does not make the AG a dictator because the courts alone will in all such cases make the final decisions and not the AG.”

Standing in his way, though, is that 1960 court ruling which says the power of the attorney general to act independently is limited. It is that ruling that Brnovich now wants the justices to overturn.

He actually has some allies in that fight: All three judges of the Court of Appeals, while rejecting his right to sue, suggested they believe that 1960 ruling was incorrect. But they said that, unless and until the Supreme Court overturns that ruling, they were bound by the precedent and Brnovich cannot get his day in court.

Hanging in the balance is more than whether Brnovich gets to sue the regents. It also goes to the question of who the attorney general serves.

By law, the attorney general provides legal advice to state agencies – not including the regents and a few others – and defends the state against lawsuits.

A ruling in his favor would provide legal license for this attorney general or any successor to bring legal actions even contrary to the wishes of the governor or state lawmakers. But Brnovich said there’s nothing necessarily wrong with that.

“The AG’s dual role of legal adviser and people’s lawyer is not absurd or unconstitutional and does not improperly infringe on the governor’s powers,” Brnovich argues. “This dual role flows from having a separately elected attorney general, who answers to the people.”

And he told the justices that’s the way it is set up in a majority of other states.

The regents now have 30 days to respond, after which time the justices will decide whether to hear arguments or simply leave the Court of Appeals ruling in place.

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