Brnovich wants to overturn precedent and expand his power to sue ABOR

The AG continues to argue that ABOR has set tuition too high, violating Arizona's Constitution

The Arizona Supreme Court heard arguments Thursday from the Arizona Board of Regents and Attorney General Mark Brnovich as he tested his power and continued his efforts to hold the board accountable and maintain transparency regarding tuition.  

Brnovich filed a complaint in 2018, arguing five points he thought proved all three Arizona universities violated the state's constitution by "ignoring the cost of furnishing 'instruction' and by charging more for online than in-person classes" when the constitution says in-state tuition should be as close to free as possible. 

"I am hopeful the justices will recognize the ability of an Attorney General to bring such cases in defense of our constitution and on behalf of the people," Brnovich said in a press release after oral arguments finished. "No government entities, including public universities, are above the law."

The sixth count in his complaint alleges that the board violated state statute by permitting universities to offer reduced tuition to any student in the state protected by the Deferred Action for Childhood Arrival program. 

The statute in question prohibits any person "without lawful immigration status" from receiving financial assistance with state money.

Despite ABOR challenging Brnovich's authority to bring the sixth count to court, Brnovich is testing his power with strong reliance on the law. During oral arguments, Assistant Attorney General Beau Roysden said that the right to sue was "on behalf of the public interest."

Lower courts previously told Brnovich that he could not sue the board on his own and needed permission from the Legislature, the governor or support of the law. 

READ MORE: Arizona Attorney General files appeal in ABOR tuition lawsuit

While he's calling it another effort to uphold accountability and keep the state's agencies as transparent as possible, some other government officials have said Brnovich's arguments have wider implications for the state as a whole. 

As an attorney general, Brnovich is the top criminal prosecutor, represents the state in civil cases and provides opinions on legal matters, but has limited authority to file lawsuits under the state's name against other state agencies unless to reclaim funds. 

The board used an old state case, Arizona State Land Department v. McFate, to argue how such instances could only happen with a specific law in mind. 

"At issue today is whether the court should reverse 60 years of judicial and legislative precedent and acquiesce in the attorney general’s demand for absolute authority to sue whomever he wants whenever he wants," said a response from ABOR Chair Larry Penley. 

The board's letter states they hold their age-old opinion that the attorney general should not be granted the authority to sue over something without the proper grounds to do so. 

Former attorneys general submitted an amicus brief earlier this month to the court, asking to overturn McFate so that Brnovich, and any future people in the position, can do what they think is best to uphold the law. 

The case was heard for 45 minutes over Zoom, but there has been no announcement on when a decision will be made. 


Reach the reporter at pjhanse1@asu.edu and follow @piperjhansen on Twitter. 

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