State ex rel. Brnovich v. Ariz. Bd. of Regents (11/25/2020)

December 3, 2020

Arizona Supreme Court holds that Attorney General lacks authority to challenge the constitutionality of the Arizona Board of Regents’ tuition-setting policies.

The Attorney General sued the Board of Regents, alleging that (1) the Board’s tuition-setting policies violate the Arizona Constitution’s guarantee that Arizona postsecondary education “shall be as nearly free as possible” and (2) offering in-state tuition to students who are not “lawfully present” is an unlawful expenditure of public funds.  The superior court dismissed the case, finding that the Attorney General lacked authority to bring the action, and the court of appeals affirmed.  The Arizona Supreme Court affirmed in part, reversed in part, and remanded.

Under the Arizona Constitution, the Attorney General’s authority is prescribed by statute.  As authority for his action against the Board, the Attorney General relied on A.R.S. § 41-193(A)(2), which provides that the department of law “shall . . . when deemed necessary by the attorney general, prosecute and defend any proceeding . . . in which the state . . . has an interest.”  However, in Arizona State Land Department v. McFate, 87 Ariz. 139, 144-45 (1960) the Arizona Supreme Court held that § 41-193(A)(2) did not authorize the Attorney General’s lawsuit against the Arizona State Land Department to enjoin an allegedly unconstitutional land sale.  McFate reasoned that such a suit must be specifically authorized by statute because an Attorney General’s action against another state department is inconsistent with his advisory duty, and the word “prosecute” in § 41-193(A)(2) means litigating an existing case, not initiating an action. 

The Arizona Supreme Court held that the Attorney General lacks authority to challenge the constitutionality of the Board’s tuition-setting policies.  The Court reaffirmed McFate’s holding that § 41-193(A)(2) does not authorize constitutional challenges against state officials and agencies, citing stare decisis and the legislature’s validation of McFate by enacting more than one hundred statutes authorizing specific Attorney General actions.  However, the Court overruled McFate’s interpretation of “prosecute” in § 41-193(A)(2), holding that the term includes initiating litigation to the extent the Attorney General is otherwise authorized to bring an action.

The Court also held that the Attorney General could under A.R.S. § 35-212(A) challenge the Board’s subsidizing of in-state tuition for students “unlawfully present” as an illegal expenditure of public funds.  Under § 35-212(A), the Attorney General “may bring an action in the name of the state to: 1. Enjoin the illegal payment of public monies . . . [and] 2. Recover illegally paid public monies . . . .”  Although the collection of tuition is not a “payment,” the Attorney General was entitled to prove that the Board illegally expended funds by subsidizing tuition beyond the amount it collected. 

Justice Bolick delivered the unanimous opinion.