Attorney General Mark Brnovich wants the Court of Appeals to rule he has the right to sue the Board of Regents over what he claims is illegally high university tuition, arguing that he has a constitutional right and obligation to protect taxpayer funds.
In new filings Wednesday, Brnovich argued that Maricopa County Superior Court Judge Connie Contes got it wrong earlier this year when she ruled that his office can sue only when specifically authorized by statute or when given permission by the governor. She rejected his arguments that he has broad powers to sue when the state has an interest. Gov. Doug Ducey, who is openly hostile to the lawsuit, has not given Brnovich the go-ahead.
But Brnovich said his office was set up in the Arizona Constitution as a separate and independent agency. And he warned of implications of requiring him to get permission to go to court, particularly to enforce constitutional rights.
“If specific legislation is required to permit the attorney general to enforce those rights, the Legislature and governor may decline to provide it and thereby possibly avoid the check on their powers the people intended,” he contends. And Brnovich sniffed at the idea that his powers to go to court are subject to permission from Ducey, saying such a ruling would interfere with his ability to get a court to take a look when state officials were acting beyond their legal powers.
“The alternative is that the governor or other executive-branch officials can simply decline to follow the law, which would promote executive supremacy at the expense of other branches, the people, and the rule of law,” Brnovich argued.
The 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.
A decade ago per-student aid from the general fund was $7,962; for the current year the figure is $4,098. And if inflation is factored in, current aid is worth only $3,572.
Brnovich argues that costs for students have 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.
Key to that is the attorney general’s contention that the regents have effectively ignored that mandate in their annual tuition-setting process.
“ABOR’s official policy did not even include as a criterion — let alone give primary weight to — the actual cost of instruction when setting tuition,” Brnovich said. Instead, he said, the regents look at other factors, ranging from the availability of financial aid to how much public universities in other states charge their students.
The entire appeal would be unnecessary had Brnovich secured Ducey’s consent to filing suit. But Ducey, who won his first election four years ago on claims of excessive tuition increases, has been openly dismissive of the attorney general’s litigation.
“Our universities are accessible and affordable,” the governor told Capitol Media Services last year, calling them “quite a value.” And Ducey said he believes that the universities are in compliance with that constitutional “nearly free as possible” requirement.
Ducey said he and lawmakers had to make some difficult decisions in prior years, making sharp cuts in funding for higher education and other priorities. What that means, he said, is the regents are doing the best they can to keep tuition not only affordable but maintain a high level of education.
He even took a slap at Brnovich for filing suit, criticizing the attorney general for going to court without first trying to talk with the regents.
Even if Brnovich gets the appellate court to rule he does have a right to sue, that still leaves other legal hurdles.
The most significant is a 2007 ruling by the Arizona Supreme Court tossing out a lawsuit filed by then-state Rep. John Kromko and other students challenging a nearly 40 percent year-over-year increase in tuition.
The justices acknowledged the constitutional mandate. But they effectively called the language nebulous — and judicially unenforceable.
“At best we would be substituting our subjective judgment of what is reasonable under all circumstances for that of the Board (of Regents) and the Legislature, the very branches of government to which our constitution entrusts this decision,” wrote Justice Andrew Hurwitz for the unanimous court.
Hurwitz said the regents set tuition “after making a series of policy decisions” about the quality of the state universities and the level of instruction to be offered. Once those decisions are made and the Legislature decides how much it will fund, the remaining costs are covered through tuition.
The justices acknowledged the cost of tuition could be reduced if the regents and lawmakers made different policy decisions, like reducing faculty salaries or increasing class size. And they said the students, in challenging the tuition, effectively are arguing for different decisions, something the justices said is beyond their powers.
Brnovich contends this case is different, as he is challenging the legality of how the regents set tuition, not a specific increase.
But if the courts don’t buy that argument, Brnovich has a fallback position, telling the judges they should reconsider — and overrule — that 2007 ruling.