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Arizona AG appeals the dismissal of ABOR lawsuit to AZ Supreme Court

Brnovich tried to sue ABOR over public university tuition rates with no success

Mark Brnovich

Mark Brnovich speaks at the 2014 Arizona Republican Party election victory party in Phoenix, Arizona, on Tuesday, Nov. 4, 2014.  

Attorney General Mark Brnovich filed a petition with the Arizona Supreme Court to reverse the dismissal of his lawsuit against the Arizona Board of Regents over what he claims to be unconstitutional tuition rates at Arizona’s public universities.

Brnovich first filed suit against ABOR on Sept. 8, 2017. The lawsuit argues that ABOR is in violation of the Arizona Constitution, which says public university tuition should be "as nearly free as possible."

The lawsuit was dismissed on Aug. 20 by the Arizona Court of Appeals based on precedent set in a case from 1960 that limits the attorney general from filing suit on his own. 

The new petition from Brnovich argues that the precedent set by this case is flawed and calls for it to be repealed. The petition mentions that all three judges from the Court of Appeals agreed that the precedent was flawed, but that they were still bound by it because they are a lower court. 

Read more: Arizona Attorney General sues Board of Regents over 'unconstitutional' raises in tuition

If this precedent is overturned, Brnovich would be able to continue with his lawsuit over tuition rates. This would also establish new precedent for future attorneys general. 

Even if the Supreme Court overturns the precedent, it does not mean Brnovich has won the tuition case. The only way Brnovich could continue the lawsuit without the Supreme Court ruling in his favor, according to the appeals court judges, is if Gov. Doug Ducey gives him permission to sue, which he has not. 

"It’s about leaving the office in a better position so future attorneys general can continue to protect Arizonans," Brnovich said in a press release.  

ABOR defended the tuition rates and said that cuts in public education funding and an increase in students has led to the rise in public university tuition over the years. 

"Despite the challenges of massive funding cuts to public higher education, Arizona State University, Northern Arizona University and the University of Arizona remain among the most affordable universities in the country," said ABOR Chair Larry E. Penley in a press release. "The board remains steadfast in our commitment to ensure tuition affordability and predictability for Arizona’s students."

ABOR has 30 days to file a response to the petition. 

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