Gubernatorial hopeful Ken Bennett is making one last legal effort to get the public to reimburse him for the expenses of his failed campaign.
Bennett is asking Maricopa County Superior Court Judge Teresa Sanders to order state and county election officials to allow him to prove that the signatures they disqualified on his forms for public financing actually are legitimate. That would involve things like bringing in affidavits from the people involved.
But there’s a big problem with what Bennett wants. Tom Collins, the executive director of the Citizens Clean Election Commission, said even if Bennett can get such a court order and prove now he really had enough valid donations, there is no legal procedure to give him the money.
The fight is over $54,800. That’s the amount of money Bennett loaned to his ill-fated bid to defeat incumbent Gov. Doug Ducey in the Aug. 28 Republican primary.
Arizona law allow candidates for statewide and legislative office to get public dollars if they refuse to take private money and show sufficient support by gathering a set number of $5 donations.
Bennett had hoped to qualify for $839,704 in public financing for his run. But he failed to get the necessary 4,000 contributions by the deadline.
He complained that he came up short at least in part because the Secretary of State’s Office shut down the online portal for donations several hours early. And he managed to convince Judge Connie Contes to order the portal reopened for several hours.
Even with that, a legally required check of signatures on the paper forms submitted showed he still came up 120 short.
In the latest lawsuit he contends county officials erred and that at least 125 of the signatures they voided are valid. So now he wants Sanders to “analyze new evidence” that these were valid and issue an order that he be declared to have qualified for public funding.
There is no way for Bennett to get the entire $839,704, as the election is over. But he contends he’s entitled to use part of that to pay himself back.
Collins said even if Bennett wins this new lawsuit, it probably does not matter. Put simply, Collins said, it’s just too late.
He pointed out that Bennett lost his status as a “clean” candidate when he failed to submit qualifying donations by the deadline. That required Collins to reclassify him as a “traditional” candidate who takes private donations.
And there’s something else.
The lawsuit does not name the commission as a defendant. Collins said even if Sanders grants his request and even if the judge determines Bennett had enough qualifying signatures, none of that can force the commission to give him any money.
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.
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