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Supreme Court to mull Attorney General’s suit against regents

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

Attorney General Mark Brnovich made a last-ditch effort Thursday to get the legal go-ahead to sue the Arizona Board of Regents over what he claims is its illegal methods of setting tuition at the state’s three universities.

Assistant Attorney General Beau Roysden told the Arizona Supreme Court that his boss has an inherent  right to sue and go to court “on behalf of the public interest.” And in this case, that involves Brnovich’s contention that the board is ignoring the constitutional requirement that tuition be set based on the actual cost of providing instruction.

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)

But Brnovich has so far been thwarted in his attempt to make that argument after both a trial judge and the state Court of Appeals ruled he needs either specific statutory authority to sue the regents, which he does not have, or permission of Gov. Doug Ducey, who will not grant it.

So Roysden wants the justices to conclude that the lower courts were wrong and that Brnovich does, in fact, have such inherent power.

But Joel Nomkin, the private attorney hired by the regents, told the justices that the Arizona Constitution spells out the role of the governor, including the power to “take care that the laws be faithfully executed.”

By contrast, he said, the constitution says the attorney general has only those powers given to him by the Legislature. And Nomkin said while lawmakers have enumerated things the attorney general can do, the power to file suit against a state agency is not one of them.

What the court decides is going to have broader implications than just whether Brnovich gets to argue about the legality of the tuition-setting process and whether students are paying too much. It also goes to the broader question of whether the attorney general can ignore the will of the governor.

That’s precisely the question Justice Ann Scott Timmer asked Roysden.

“I think if there was a situation where the attorney general felt that an agency was acting illegally and wanted to come to the court and ask the court to review that, the governor would not have the authority to tell the attorney general, ‘Don’t bring this to light,’ any more than the governor would have the authority to tell the attorney general, ‘Stop bringing information to a grand jury because I don’t want one of my subordinates to potentially be subject to criminal prosecution,’ ” Roysden reponded. “The attorney general has that independent role.”

The importance of the precedents this case will set was not lost on Ducey who decided to weigh in, hiring Dominic Draye, a former assistant attorney general, to argue that Brnovich has overstepped his bounds.

Draye cited not just Ducey’s constitutional authority but the fact that the Legislature has separately given the Board of Regents specific authority to set tuition.

“There is no similar statute authorizing the attorney general to second-guess their calculations and bring suit against the regents in order to impose his policy preference over their own,” Draye said.

Roysden disagreed, saying his boss has certain inherent authorities to “come to court and sue in the public interest.”

What the justices decide will determine if Brnovich can go back to trial court and pursue his original claim.

He argues that the Arizona Constitution requires that instruction at state universities be “as nearly free as possible.” Brnovich contends that universities are violating that, citing not just the actual tuition but also various mandatory fees for things like athletics.

His lawsuit is built in part on numbers.

In filing suit in 2017, he said tuition and mandatory fees at Arizona State University are 315 percent higher than they were in the 2002-2003 school year. That figure is 325 percent for Northern Arizona University and 370 percent for the main campus of the University of Arizona.

“In contrast to the increases in tuition, the consumer price index has increased only 36 percent over the same period,” Brnovich argued in his original lawsuit. And he said even if public universities are held to a different standard, what’s happened in Arizona outstrips the national average tuition increase for similar schools of slightly more than 19 percent.

Beyond that, Brnovich reads the Arizona Constitution to require the board to base tuition for Arizona residents on what it actually costs to educate them, above whatever aid comes from taxpayers.

What actually is happening, he contends, is the board has been using other improper factors, ranging from what other state universities charge to the availability of financial aid. He said the board is “essentially concluding that if students can borrow enough money, ABOR is cleared to charge it.”

Even if Brnovich convinces the Supreme Court that he does have the right to sue, that does not mean he wins the case and tuition policies will be reversed. The regents have other legal arguments on their side, including the claim that the issue of what is appropriate tuition is a “political question” beyond the reach of the courts.

The justices did not indicate when they will rule.

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