Court rules against lawmakers in single-subject dispute

The Arizona Supreme Court on Tuesday voided a ban on mask mandates in public schools and a host of other legislative changes, ruling it was illegal for lawmakers to pile them into a handful of budget bills. 

Without comment, the judges rejected arguments by Assistant Attorney General Beau Roysden that there’s nothing inherently wrong with the process that lawmakers have used for years to put policy changes, like whether schools can mandate masks for staff and students, into bills that are labeled only as relating to the budget. 

Also now voided are a host of other measures, ranging from a prohibition against colleges requiring vaccinations and how to teach about race in public schools to the kind of paper that counties must use for ballots and stripping Secretary of State Katie Hobbs of her powers to defend state election laws. 

In upholding a lower court ruling, the justices also slapped down arguments by Roysden that the legislature alone decides whether what it puts in bills complies with the Arizona Constitution. Among those requirements is a mandate that all measures deal with only a single subject and that all bills have a title that informs the public of what changes they make. 

During a hearing earlier in the day, Roysden, in essence, told the justices they should butt out of legislative business. 

“It is not for the court to second guess that,” he argued. 

That did not go over well. 

Robert Brutinel

“So the single subject rule is just a suggestion?” asked Chief Justice Robert Brutinel. 

Justice William Montgomery got more specific, citing provisions in one challenged bill labeled only as dealing with “budget procedures.” 

“So how does dog racing relate to budget procedures?” he asked. 

“I think that’s the toughest question in this case,” Roysden conceded. 

But he maintained that people, in reading the title “budget procedures,” are put on notice that there may be a grab-bag of individual items in there. And that, Roysden said, is all that’s constitutionally required. 

With Tuesday’s order, the justices said that’s not the case. But they did not explain their decision, promising a full-blown ruling at some point in the future. 

That will be crucial as lawmakers, now banned from using the reconciliation bills as catch-alls, now will be looking for guidance about what they can — and cannot — do in the future. 

Senate President Karen Fann, R-Prescott, said the more immediate question is what to do about the now-voided provisions. 

“We’re going to have to go through and get a list of what was affected and how it was affected,” she said. 

One possibility, Fann said, would be a special legislative session. There, each of the provisions that the Supreme Court nullified could be reintroduced and brought up for a vote on an individual basis, avoiding the illegal practice of bunching them together. 

But it remains unclear whether each could pass on its own. 

For example, legislation spelling out how race, ethnicity and gender can be taught in public schools had failed on its own. 

It was only when that language about what lawmakers called critical race theory, was put into a reconciliation bill that it passed. That forced foes to accept the all-or-nothing package to get other provisions they wanted. 

That’s why House Minority Leader Reginald Bolding, D-Laveen, called the ruling “a win for the legislative process.” 

“It was never appropriate for the (House) speaker and the Senate president to load up the budget with unrelated and controversial policy items to mollify certain extreme members and avoid negotiating a bipartisan budget.” 

Tuesday’s ruling also is a setback for Gov. Doug Ducey who not only championed the ban on mask mandates but has denied some federal Covid relief dollars to schools that he said are not in compliance with state law. Now, with the law permanently struck, there is no excuse for him to withhold those funds. 

Gubernatorial press aide C.J. Karamargin would not answer what Ducey intends to do next about schools that impose mask mandates, saying only that the governor believes that people should be able to make their own decisions with the guidance of their doctor, “not because of some government mandate.” 

In fact, though, Tuesday’s ruling actually could cause some school districts who had balked at mask mandates because of the law to now rethink that position. 

At stake were provisions of four measures lawmakers adopted earlier this year, all under the banner of “budget reconciliation.” 

Maricopa County Superior Court Judge Katherine Cooper ruled earlier this year that none of the measures comply with that constitutional requirement that the title of each bill must reflect what changes it makes. And she said one of them — the one labeled only “budget procedures” — was so full of unrelated issues that it violated the separate requirement for all measures to deal with only a single subject. 

Roysden drew the task of convincing the high court that Cooper got it wrong. 

But it became clear, even before he said his first words, that the odds already were against him. Brutinel noted that the justices met earlier, behind closed doors, to discuss the issues. 

“I think it’s fair to say there’s some consensus about whether the statutory provisions violate the single subject rule and the title requirements of the Arizona Constitution,” he said. “I think the consensus is that they do.” 

All that left Roysden to argue that this is none of the court’s business. 

“This would be uncharted territory,” he told them. “That is a terrible idea for the court to start down this path.” 

Bill Montgomery

But Montgomery said legal precedents going back more than two centuries spell out that it is precisely the role of the judiciary to judge — and strike down — actions by other branches of government that run afoul of the constitution. And Montgomery said there certainly are questions about whether lawmakers are in compliance. 

Consider, he said, the measure labeled “K-12 budget reconciliation.” Among the provisions in that bill is that ban on schools mandating masks. 

“So how does that relate to appropriation?” Montgomery asked. 

“The legislature could say if we’re going to fund schools, we want kids to go to the schools and we think (a) mask mandate is going to deter attendance,” Roysden responded. 

“We don’t want the schools that we fund to impose these types of mandates,” he continued. “That is within the power of the legislature.” 

That line of thinking clearly didn’t convince the justices. 

Anyway, Roysden argued, no one is fooled by the title. He told the court that anyone who cares about K-12 funding would look at the title and be on notice that there might be major policy changes — like that ban on mask mandates. 

That drew a skeptical response from Brutinel. 

“We’re all supposed to understand that ‘budget reconciliation’ means ‘anything we want’ ”? he asked. 

Roysden said those in the know do understand. 

“Anybody who reads the newspaper will know,” he said. 

“I’m not going to a newspaper to decide a constitutional issue,” Montgomery shot back. 

Roopali Desai

In striking down the laws, the justices sided with attorney Roopali Desai, representing the education groups and allies who challenged the four statutes. She warned the justices against accepting the arguments that lawmakers alone get to decide what can be in budget reconciliation bills and that the courts have no role in determining whether they are complying with constitutional requirements. 

“That could lead to some very problematic results,” she said. “What’s to say that the legislature doesn’t say that about every act that they pass?” 

In voiding the statutes, the justices also rejected Roysden’s backup argument that if they were going to find the practice of budget reconciliation bills illegal they should make their ruling prospective. He said there was no way for lawmakers to know that what they were doing was unconstitutional. 

That would have allowed the challenged provisions to take effect. 

But Desai countered — and the justices apparently agreed — that legislators have been on notice since at least 2003 when the Supreme Court found fault with a similar process 

 Editor’s note: This story has been revised to include comments from Senate President Karen Fann, Rep. Reginald Bolding, and Ducey spokesman C.J. Karamargin. 




Google wants to keep data tracking secret


Internet giant Google is asking a judge to block a bid by Attorney General Mark Brnovich to publicly disclose documents he got from the company during his investigation of how it uses private information.

Attorney Jean-Jacques Cabou contends there’s no basis for Brnovich’s complaint in the first place, arguing that anything the company is accused of doing does not run afoul of the Arizona Consumer Fraud Act. That is the law that the attorney general is using to claim Google is defrauding Arizona consumers by collecting private information and then storing and sharing it with others.

But Cabou says there can be no fraud because Google was not selling anything to Arizona consumers. And he said Arizonans knew that Google applications and phones using Google’s Android operating system were tracking them, then they agreed to it.

Cabou told Maricopa County Superior Court Judge Timothy Thomason in new filings that he should decide the issue of the validity of the case first. He said if the lawsuit is tossed, the issue of what Google documents become public becomes legally moot.

Mark Brnovich
Mark Brnovich

But Assistant Attorney General Beau Roysden told the judge that the public has a right to know — and immediately — what his office unearthed in its investigation of Google. And he said that the company’s mere assertions that pretty much all 1,200 pages of what it has produced should not be released “do not establish that the materials are confidential, nor are they a basis for sealing information so designated.”

And he said Google has never explained how it would be harmed by disclosure.

“Nor has Google shown that its interest — whatever it may be — overrides the presumption of public access,” Roysden wrote. “On the contrary, consumers have a strong interest in learning how their own data is surreptitiously collected and used by Google.”

Central to the lawsuit, Brnovich is arguing, is that Google last year collected $135 billion from advertisers for detailed information about its users, including where they are located. That information helps those advertisers target users in specific geographic locations.

The problem with all that, Brnovich charges, is that the tactics the company uses to “surveil” its users’ locations are “willfully deceptive and unfair.” And that, he said, violates the state’s Consumer Fraud Act.

He also says it is difficult — and in some cases impossible — for users to stop Google from tracking their travels even after they turn off the “location services” on their devices, calling it “a fake button.” If nothing else, Brnovich said that the default setting for this should be “off.”

Brnovich wants a judge to order Google to surrender any profits it has made “by means of any unlawful practice.” He also wants “full restitution” to Arizona customers and for the company to pay a fine of up to $10,000 for each willful violation of Arizona law.

Finally, he wants a court order barring Google from engaging in similar practices in the future. That would cover not just Google manufactured devices but also its Android operating system and its popular search engine.

Cabou has a few charges of his own.

“Google learned through information it received pursuant to the Arizona Public Records Law that the investigation was encouraged by Google’s long-time adversary, Oracle,” he told the judge.

More to the point, Cabou said Brnovich is arguing the documents at issue need to be disclosed because of “so-called public interest in the case.” But he said that the investigation itself was “improperly publicized” locally and nationally before the lawsuit was filed.

Capitol Media Services, using documents obtained through public records, wrote in 2019 that Brnovich had launched an inquiry into “a major tech firm” about whether it was tracking their movements.

The name of the firm to be investigated, located in a contract with an outside law firm for assistance, was blacked out. But the contract with an outside legal firm was signed just a week after The Associated Press reported that Google was tracking users’ locations even after people had opted out.

Cabou even has something to say about that contract, pointing out the fee arrangement with the Washington law firm of Cooper & Kirk, gives that firm a percentage of what it could recover “or extract a settlement from Google, and nothing at all if they did not.”

The contract caps total outside legal fees at $50 million, not counting what might be recovered in restitution for Google clients.

Ryan Anderson, spokesman for the attorney general’s office, called Google’s response to the request for records — and the complaint about the contingency fee arrangement — “hyperbolic and absurd.” He said to reach that amount, a settlement or verdict would have to exceed $1 billion.

And what of the issue about Oracle?

“I’m not sure what Google’s point is other than to obfuscate reality,” Anderson said.

`We filed a consumer fraud lawsuit against the company because Attorney General Brnovich believes Google should be held accountable for their deceptive behavior,” he said. “I’ve got news for Google: so does much of the Free World.”

The most immediate legal issue involves those documents Brnovich got from Google.

Roysden is relying on the issue of public interest in the case as he tells the judge that the information his office gathered during its investigation “cannot be sealed.” He said there is a strong presumption of public access.

And Roysden said just the fact that Google is trying to keep the documents from public view is, in itself, telling.

“Google’s attempt to hide its wrongdoing from the public only demonstrates that Google’s actions have been willful and intentional,” he told Thomason.

“Google cannot articulate a compelling interest for sealing this information, much less one that overrides the public’s strong interest in the facts surrounding the case,” he said. “Neither can Google establish prejudice beyond embarrassment.”

A status conference on the case is set for next month.

Brnovich has acknowledged that others gather information about Arizona consumers without their consent and sell it to third parties, particularly credit bureaus. But this, he said, is far different.

“They’re collecting vast amounts of data, including location services, where you’re at, how long you’re at a store and everything else, which is much more invasive than, let’s say, someone running your credit report,” he said.

And Brnovich noted that consumers have a right to request a copy of their credit report to find out exactly what is being reported on them and ask the company to remove erroneous information. That is not an option, he said, with the kind of tracking being done here.

Hobbs: Reagan staffers deleted public records

Michele Reagan at her 2015 inauguration (Photo by Evan Wyloge/Arizona Center for Investigative Reporting)
Michele Reagan at her 2015 inauguration (Photo by Evan Wyloge/Arizona Center for Investigative Reporting)

Former Secretary of State Michele Reagan and top staffers deleted public records before leaving office in January, according to the new Secretary of State, Katie Hobbs.

Hobbs, a Democrat, alerted state attorneys of the issue on Feb. 14. The discovery arose while Hobbs’ staff attempted to fulfill a public records request, she wrote in an email to Assistant Attorney General Todd Lawson and Beau Roysden, chief of the Appeals and Constitutional Litigation Division.

“It has come to our attention that emails were deleted by the previous secretary and several executive staff prior to leaving office,” Hobbs wrote on Feb. 14. “Not sure if this should go to criminal or civil division, but wanted to be sure to bring this to your attention. We are happy to provide further details that would be helpful.”

It’s a Class 4 felony for officials to knowingly destroy public records in Arizona.

Katie Hobbs (Photo by Gage Skidmore/Flickr)
Katie Hobbs (Photo by Gage Skidmore/Flickr)

Hobbs and staff were attempting to comply with a public records request filed by the Arizona Mirror, which sought electronic and written communication between Reagan, her elections director, Eric Spencer, and assistant secretary of state Lee Miller between October and November 2018.

The Mirror also sought any communication by Reagan, Spencer and Lee with the Maricopa County Recorder’s Office, which has faced scrutiny in the days and months following the general election on Nov. 6.

Reagan, a Republican, said she had no clue what Hobbs was referring to, and that she hadn’t deleted or destroyed emails intentionally. While she regularly deleted emails from her inbox, Reagan said they should all be backed up regardless.

“To my knowledge, we couldn’t delete something forever,” she said. “I don’t know if someone in IT did something hinky, but it wasn’t at my direction.”

Miller said it was standard procedure to let IT search for emails that were relevant to public records requests: “Every records request we ever got during the Reagan administration we routed down to the IT department and they gathered up the responsive information directly from the servers. What may or may not have been on any particularl users desktop was never relevant.”

Spencer said he left all his records intact on his last day at the secretary of state’s office on Dec. 28.

“This is news to me. I didn’t delete a single email.” Spencer said. “I can only imagine they must be referring to an inbox other than mine.”

C. Murphy Hebert, a spokeswoman for Hobbs, said staff has searched for backups of any emails. While a consultation with IT turned up some records, there were enough missing emails that the new administration was “surprised, to the point that we felt we needed to do some due diligence,” Hebert said.

Judge hears arguments in AG suit against regents

Lawyers for the Board of Regents told a judge Friday that Attorney General Mark Brnovich has no legal right to challenge the tuition it sets for the state’s three universities — or even the policies used to come up with those numbers.

Joel Nomkin pointed out the last challenge came more than a decade ago when former lawmaker John Kromko and others sued following the regents’ decision to hike tuition by close to 30 percent. They charged — as Brnovich does now — the board with violating a constitutional provision that instruction be “as nearly free as possible.”

Nomkin reminded Maricopa County Superior Court Judge Connie Contes that the Attorney General Office — then actually defending the regents — argued that such questions are beyond the reach of courts, with the language “not susceptible to judicially discoverable and manageable standards for resolution.” The Supreme Court agreed, tossing out the claim.

“The only thing that’s changed since Kromko is that the attorney general has switched positions and is now suing his client,” Nomkin said.

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)
Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

Assistant Attorney General Beau Roysden does not deny that ruling. In fact, he essentially is conceding that there is no right to challenge the specific tuition figures now exceed $10,000 a year for Arizona residents.

But Roysden said what his boss is contesting is the policy of how the board got to those numbers.

He contends that the plain language of the Arizona Constitution requires the board to set tuition based solely on how much it actually costs to provide instruction. Roysden said the board instead considers eight factors, ranging from how much other state universities charge to the availability of student loans and other aid.

“Out of eight factors, none of them are how much does it actually cost to instruct a student,” he said.

Hanging in the balance is the claim by Brnovich that board members have “dramatically and unconstitutionally” increased the cost of going to one of the state’s three universities by anywhere from 315 percent to 370 percent since the 2002 school year. On an annualized basis, he said, that computes out to 14.1 percent, “the third fastest rate of growth among all 50 states.”

Brnovich has not disputed that some of that is likely due to lawmakers sharply decreasing the dollars supplied for higher education. Legislative budget analysts have found that since 2008 state aid went from $9,648 per student to $4,098, even before the effects of inflation are considered.

But Brnovich contends all of that is legally irrelevant. He said the only thing that matters is that the tuition be linked to the actual cost of instruction.

“The purpose of the attorney general’s suit is to stop and recover the illegal payment of public monies, (and) make tuition more affordable for all Arizonans,” Roysden said. And he told the judge the issue extends beyond the cost of tuition for full-time students.

He said Arizona residents who want to attend college on a part-time basis are paying more on a per-class basis than those who go full time and that in-state students in some cases pay the same tuition for online courses as those who do not live here.

“And ABOR is charging mandatory fees for things like health, athletics and recreation, even if a student just wants to attend class and receive instruction towards his or her degree,” Roysden said.

Nomkin said none of that matters.

He said the Supreme Court, in the Kromko case, essentially said that if people are unhappy with how the board is setting tuition they have a remedy: Take their case directly to lawmakers, as it was the Legislature that gave the regents the authority in the first place — and who always have the power to take it away and set tuition themselves.

Only part of the lawsuit is over that question of how tuition is set.

Roysden also told Contes the regents are acting illegally allowing “dreamers” who are Arizona residents to attend the state’s three universities paying the same tuition as other in-state students.

That is based on a 2006 voter-approved law that says state dollars cannot be used for tuition waivers or assistance for someone who is “without lawful immigration status.” Brnovich contends that while the Deferred Action for Childhood Arrivals program allows people who arrived in this country illegally as children to remain, they still are here contrary to federal immigration laws.

Roysden contends the only way to determine if the tuition for dreamers is being subsidized is to ascertain what it actually costs to teach students. And that, he told Contes, also opens the legal door for the attorney general to ascertain the actual cost of instruction and challenge that as not being constitutional.

Whatever Contes decides is unlikely to be the end of the dispute.

If she agrees with Brnovich, that sets the stage for a trial on whether the regents are complying with the Arizona Constitution. But Brnovich is virtually certain to appeal if she sides with the regents and dismisses the case.

The judge gave no indication when she will rule.

Supreme Court hears Tucson election case


An attorney for the city of Tucson asked Arizona Supreme Court Tuesday to slap back yet another effort by state lawmakers to tell charter cities when they have to hold their elections.

Jean-Jacques Cabou said the whole purpose of the Arizona Constitution in allowing cities to adopt charters was to give them control of matters of purely local concern. And in this case, he said, Tucson voters have said they like having their elections in odd-numbered years so that local issues do not get buried under debates about who should be president or governor or any of the statewide ballot issues.

“Let’s be clear: The electors of the city of Tucson have consistently and very recently have said, ‘We want odd-year elections, leave us alone,’ ” he told the justices, with Tucson voters deciding as recently as November 2018 to keep their odd-year elections.

Under questioning from the court, Cabou conceded that there are limits to local power.

“If the city of Tucson, or some other city for example, passed a law that said only property owners could vote in purely municipal elections, there’s no question that the state would have a constitutional imperative to step in and say, ‘No, no, no,’ ” he said. Such a provision would infringe on individual constitutional rights.

J.D. Mesnard
J.D. Mesnard

“But the question here is whether the state — and one legislator who doesn’t represent any part of the city of Tucson — can step up and say, ‘We want your elections to be when we say so,’ ” Cabou said, a reference to the fact the measure was pushed through by J.D. Mesnard, a state senator from Chandler.

But Assistant Attorney General Beau Roysden said the members of the Republican-controlled legislature who mandated consolidating elections have a legitimate interest in promoting voter turnout. And he said the 2018 law promotes that concern.

What the justices decide will have implications beyond Tucson. There are 19 communities in the state that have taken advantage of a provision in the Arizona Constitution allow them to adopt charters to govern local matters which, until now, have included things like when to hold elections and terms of office.

And an adverse ruling by the high court could open the door to state lawmakers imposing other restrictions on the power of councils in those charter cities to make their own decisions.

Tuesday’s hearing is the latest bid by lawmakers to exert their will on not just Tucson but charter cities.

It started in 2012 with a law requiring consolidated election dates. But that was struck down by the state Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities decide is a local matter.

The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It says cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.

The Tucson turnout in 2019 was 39.3% versus 67% of Tucsonans who had voted in 2018. But the council ignored the law and set the next election for later this year.

But the justices questioned Roysden how any of that is a matter of “statewide concern.”

“Where’s the statewide interest of someone in Lake Havasu of when Tucson holds an election?” asked Justice Bill Montgomery.

Roysden said that statewide interest is “allowing their citizens to effectively vote.” He said that’s the whole purpose of the 2018 law.

Andrew Gould
Andrew Gould

But Justice Andrew Gould suggested that Roysden was confusing this with the state’s interest in protecting the individual right to vote.

“Our laws certainly say we can’t burden it, we can’t discourage it, we can’t limit it through either expenditures or overly restrictive regulations in terms of access,” he said. “Where do you derive this statewide interest to increase voter participation?”

Roysden was undeterred, saying the legislature, as “the elected representative of the people,” gets to make that decision. Anyway, he said, the constitutional power of the legislature to ensure “the security of elections” trumps the constitutional right of cities to create their own election laws.

Gould wasn’t buying it.

“Security, election integrity, disenfranchising voters is a very different thing from encouraging and increasing voter participation,” he said.

“I don’t agree,” Roysden responded. That assertion got Montgomery’s attention.

“So the state legislature could penalize people that don’t vote,” he asked, making it a crime?

Roysden said that’s different.

“If you have a right to vote, you have a right to refuse to vote,” he said.

Cabou picked up on that point, telling the justices that Roysden is effectively arguing that having more people vote will lead to a better outcome.

And he said there’s another thing wrong with the state’s argument about the inherent constitutional right of the legislature to set policy on local elections.

“The same constitution that created the legislature created charter cities and created this court,” Cabou said, all of which have a role. In this case, he said, the framers gave charter cities certain powers to be “laboratories of democracy to let them pick and choose how they elected their leaders and structure their government.”

“That purpose would be totally vitiated if the state is allowed to impose its will on the electoral plans of the charter cities,” Cabou said.

He also pointed out to the justices that the candidates for municipal offices are listed at the bottom of the ballot. Cabou said while more people may turn out for statewide races, there’s no evidence that the percentage who manage to make their way to the bottom of the ballot is any higher than in a local-only election.

The justices did not say when they will rule.

Charter cities in Arizona:

– Avondale

– Bisbee

– Casa Grande

– Chandler

– Douglas

– Flagstaff

– Glendale

– Goodyear

– Holbrook

– Mesa

– Nogales

– Peoria

– Phoenix

– Prescott

– Scottsdale

– Tempe

– Tucson

– Winslow

– Yuma

Supreme Court refuses to hear AG’s tuition challenge

money school college debt tuition 620

The Arizona Supreme Court on Tuesday rebuffed the latest bid by Attorney General Mark Brnovich to have the method of setting tuition at the state’s three universities be declared unconstitutional.

Without comment the justices refused to hear his arguments that the Arizona Board of Regents are acting illegally by essentially deciding first how much they want to charge – or how much they think they can charge – and then justifying the amount later. Those factors, Brnovich said, include everything from median Arizona income and the availability of student loans to what state-run “peer universities” in other states are charging.

Brnovich said the Arizona Constitution requires the board to determine how much it costs to educate students and then set tuition based on that coupled with how much money the Legislature appropriates.

“With its unconstitutional tuition-setting policy, ABOR has abandoned its duty to serve as a check on the university presidents, and has engaged in an unprecedented series of lockstep tuition hikes across Arizona’s three public universities that has resulted in a 16-year tuition increase of over 300 percent at each school,” wrote Assistant Attorney General Beau Roysden for Brnovich.

Strictly speaking, Tuesday’s decision by the high court to refuse his petition does not end the dispute.

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)
Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

In fact attorneys for the Board of Regents urged the justices to butt out, at least for the time being, pointing out that Brnovich has nearly identical claims awaiting review at the Court of Appeals.

But the refusal of the Supreme Court to intercede now could prove crucial.

In a ruling last year, Maricopa County Superior Court Judge Connie Contes ruled that Brnovich has no legal right even bring a challenge to the tuition set for the state’s three universities – or even the policies used to come up with those numbers.

Contes concluded that Brnovich can file such lawsuits only when he has specific legislative authority or permission of the governor. In this case, the judge concluded, he had neither.

It is that ruling that awaits action by the state Court of Appeals.

But the attorney general all but conceded that if the appellate judges find that Contes is right – that he has no authority to bring the claim — that his efforts to fight the regents and the tuition could come crashing to a halt: In his petition to the Supreme Court, Brnovich told the justices that taking the case directly to them “is possibly the only way to obtain judicial review in asserting and obtaining relief on these claims.”

Brnovich spokesman Ryan Anderson said Tuesday’s ruling is not a surprise.

“We’re not idiots,” he said. “We knew this was an uphill battle from the beginning.”

But Anderson said this isn’t the end, as whatever the Court of Appeals rules ultimately will wind up back before the Supreme Court.

At the heart of the legal fight is a constitutional provision that mandates that instruction at state universities “shall be as nearly free as possible.”

“ABOR nonetheless adopted a tuition-setting process that did not consider the cost of instruction as a factor when setting tuition, but rather looked at other factors such as students’ ability to pay by taking on debt,” his lawsuit charges. “Subsequently, tuition has skyrocketed at Arizona’s three public universities.”

Brnovich also is challenging what he said is higher tuition for part-time and fully online students, and what he said are illegal mandatory fees unrelated to instruction.

Even if Brnovich can eventually get a court to conclude he has a legal right to sue, that still leaves him with a significant hurdle.

More than a decade ago, the state Supreme Court dismissed a lawsuit filed by some university students challenging a 39 percent year-over-year increase in tuition. The justices said the issue of tuition is a “political question” beyond the reach of the courts.

Brnovich, however, says his lawsuit is different as it challenges not the level of tuition but how it is set.

The appellate court will hear his appeal of the Contes ruling later this month.


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.

Tucson vaccine mandate illegal, AG says

In this Jan. 7, 2020, file photo, Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix. Brnovich says Tucson's vaccine mandate for city employees is illegal. Brnovich's decision Tuesday, Sept. 7, 2021, gives Tucson 30 days to repeal the mandate or lose millions of dollars in state funding. (AP Photo/Bob Christie, File)
In this Jan. 7, 2020, file photo, Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix. Brnovich says Tucson’s vaccine mandate for city employees is illegal. Brnovich’s decision Tuesday, Sept. 7, 2021, gives Tucson 30 days to repeal the mandate or lose millions of dollars in state funding. (AP Photo/Bob Christie, File)

A Tucson ordinance requiring city employees to get vaccinated or face suspension is illegal, Attorney General Mark Brnovich concluded Tuesday.

In a letter to city officials, Solicitor General Beau Roysden, writing for Brnovich, said the Aug. 13 vote by the council directly conflicts with a statute approved in June by state lawmakers. It specifically prohibits state and local governments from requiring any person to be vaccinated for Covid.

Roysden acknowledged that, strictly speaking, SB1824 does not take effect until Sept. 29. But the attorney general wants an immediate halt to prevent what he said could be harm to city workers who are forced to roll up their sleeves, even for a law not yet in effect.

“Nothing is more coercive than a government mandate to do something that’s soon going to become illegal,” Brnovich told Capitol Media Services.

That echoes what is in the official findings.

“It is self-evidence that any negative side effects of a vaccine will not be undone merely on the general effective date of legislation,” the report states.

“And it will be cold comfort to city employees that state law unambiguously protects them after they were required to obtain a vaccine that they would not otherwise have obtained in the first place,” Brnovich continued. “Any harm at that point would have already occurred.”

The statements drew derision from Tucson City Attorney Mike Rankin.

“I don’t understand how the attorney general can simultaneously acknowledge that the statute does not yet exist as law yet still say action by the city last month violates the ‘law,’ ” he told Capitol Media Services.

“The attorney general agrees that it is not the law,” Rankin continued. “That should be the end of it.”

Mayor Regina Romero agreed.

“It is deeply unfortunate, but not surprising, that the attorney general is prioritizing his political ambitions over his responsibility to objectively interpret the law,” she said in a prepared statement, with Brnovich running for U.S. Senate. “This report reads more as a campaign speech filled with political commentary rather than a fact-based legal opinion.”

Brnovich spokeswoman Katie Conner brushed aside the fact that the law, strictly speaking, is not yet in effect.

“At the end of the day, it’s really, when you think about it, offensive what Tucson is trying to do when policymakers have clearly spoken on what the policy is in the state of Arizona, especially with something as permanent as a vaccine,” she said.

The dispute is more than academic.

State law says if the attorney general finds that a local law violates state statute, the state treasurer is required to withhold most of the community’s state revenue sharing dollars, a figure that Rankin estimates to be about $120 million a year.

Romero said the mayor and council are reviewing the findings, with one option being to take the dispute to the Arizona Supreme Court. But in the interim, City Manager Michael Ortega said he is pausing implementation of the policy.

The Tucson ordinance, believed to be the first of its kind in the state, required all city employees to get at least their first dose of an approved Covid vaccine by Aug. 24. There are exceptions for medical reasons, accommodations for disabilities, or a “sincerely held religious belief.”

Workers who did not comply faced a five-day suspension without pay. And continued refusal could lead to other penalties like having to pay more for their health insurance.

Conner said this is not acceptable.

“Adherence to the rule of law in Arizona is not optional,” she said. “It’s everyone’s responsibility, including the city of Tucson.”

But all that presumes SB1824 is legal — or will be after Sept. 29.

It is one of the “budget reconciliation” bills enacted by lawmakers in the waning days of the session.

There already is a lawsuit challenging the validity of that law based on constitutional provisions that require all measures to deal with only a single subject, and that any subject must be reflected in the title. But this bill deals not only with a ban on vaccine mandates by state and local governments but also everything from the state’s newborn screening program to a special fund within the Department of Economic Security to provide services for sexual violence victims.

A hearing on the legality of SB1824 is set for Sept. 13. But Josh Kredit, the assistant chief deputy under Brnovich, promised an appeal if Maricopa County Superior Court Judge Katherine Cooper concludes the statute is invalid.

“It’s hard to determine how that will impact us,” Kredit said. But he said that, as far as his office is concerned, the Tucson ordinance, as of now, violates both state law and the governor’s executive order.

Brnovich’s arguments, however, are not limited to the effective date of the law.

The report notes that Gov. Doug Ducey interceded on Aug. 16, issuing his own executive order which the governor claims bans the kind of vaccine mandates Tucson enacted until the law takes effect.

But Rankin said Ducey’s executive order is relying on what the governor believes is his authority under state health law. And he said that even Brnovich’s office has acknowledged that the sections of that statute cited by the governor limit only what the state and counties can do, not what legal options are available for cities.

And then there’s the question of whether Ducey still retains his powers to issue edicts under an emergency he declared more than a year and a half ago.

“That’s a great question,” Kredit said. “I’m not sure.”

Brnovich said he is not anti-vaccine.

“I would encourage people to get the vaccine,” he said. But Brnovich declined to say whether he has been inoculated, said these are “personal medical decisions.”