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Why The Arizona Supreme Court Struck Down Lawsuit Against Public University Tuition Guidelines

Published: Tuesday, December 1, 2020 - 12:36pm
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LAUREN GILGER: Last week, the Arizona Supreme Court ruled a lower court was right to throw out a lawsuit from Attorney General Mark Brnovich that challenged the way the state Board of Regents sets tuition at Arizona's public universities. The justices upheld a ruling from a 1960 case known as "McFate" that said the [attorney general] A.G. can only bring a suit when they have the permission of the Legislature or the governor. Before that ruling, several former Arizona attorneys general, both Republican and Democrat, had called on the court to overturn it, arguing there were times when the A.G. and the governor could disagree on when a lawsuit was warranted. To find out more about last week's decision, our co-host Mark Brodie spoke with Paul Bender, a professor and dean emeritus at the Sandra Day O'Connor College of Law at ASU. And they started with Bender's reaction to the ruling.

PAUL BENDER: The important part of it is that the Supreme Court reaffirmed what had been held in McFate and what had been followed for years, which is that the attorney general of Arizona does not have any powers by virtue of being attorney general. The powers he has, he gets through the legislature. And so in this particular case, the court held that since the legislature had not authorized the attorney general to bring a suit about the tuition, that the state universities — he didn't have the power to do that.

MARK BRODIE: Is it surprising to you that this is the way it is, given the fact that the attorney general is an elected constitutional officer, not tied to the governor or the legislature?

BENDER: It's not a surprise because I've gotten used to it. But when I first came here and found this out, it was a surprise because I was used to, as I think most people are, attorneys general being part of the executive branch under the governor. And you don't vote for the attorney general. You vote for a governor or a president. The president appoints the attorney general and then the president figures out what he wants the attorney general to do. And I suppose the legislature has power also. But here you get to vote independently for an attorney general so you can have an attorney general of a different party from the governor, for example. And that's happened sometimes.

BRODIE: Looking through what the state Supreme Court ruled and what the justices had to say, what was the rationale for keeping this system the way that it has been?

BENDER: As I understand it, the — Justice [Clint] Bolick's opinions of the court basically relies upon stare decisis. That is, that's already been decided, and they're not going to change it. If they were doing it from the ground up for the first time, I'm not sure what they would do. But he doesn't do that. He says if this has been the law for a long time — and the most important thing in his opinion is that the legislature has obviously relied upon this because over and over again, the legislature authorizes the attorney general to do things and they wouldn't bother doing that if he had power to do it without their authorization. It's not a big problem in this particular case that the attorney general doesn't have a problem. We're talking about the constitution of Arizona and the attorney general is making the argument that the Board of Regents is ignoring the Constitution in the way it sets tuition because it's not trying to make it as nearly free as possible. It has some formula which sets the tuition based on what other state universities in other states do. So that's what the attorney general is trying to do. And it would be a real problem if he would be the only one who could do that, and the court said he couldn't do it. But in fact, there are other people who can raise whether the tuition is unconstitutional, namely students who have to pay it. And so since the people it directly affects, the students and their parents can bring a suit against the Board of Regents challenging the constitutionality of the const — of the tuition, it's not such a major problem that the attorney general cannot do it.

BRODIE: So you mentioned this case, obviously having to do with tuition, that there are other parties that would be able to bring this kind of lawsuit. Can you think of other areas of policy or law where if the attorney general is not able to bring a suit questioning the constitutionality, that there might not be anybody else who can do it? Or is this kind of the way it is for most, if not all areas where if the A.G. can't do it, somebody else could?

BENDER: Usually there is somebody else who can, but it's hard to describe because it gets so complicated. But as you've probably heard, courts have was about standing, and often they will find that nobody has standing to do something. By the — Brnovich's big problem here is that the Supreme Court decided — I forget how many years ago, maybe 10 or 15 years ago — that the Board of Regents' system of setting tuition did not violate the constitution because they thought it was a political question that they could not answer by deciding whether the constitution permitted it or not. And so they said nobody can sue. So he would have had to have that overruled as well in order to succeed in this lawsuit.

BRODIE: So if the attorney general is only allowed to sue when they have permission from the legislature or governor, am I right that the legislature could explicitly give the attorney general? Of course, that the governor would have to sign off on this as well, if it's a bill going through the legislature. But lawmakers could say, "OK, Attorney General, we would like you or we approve of you suing over X or suing over Y." Is that the kind of thing that could happen?

BENDER: They can do it, but I think the right way to do it is not to do it in each particular case, because that seems like the legislature doing something it shouldn't do. Legislature is not supposed to decide or litigate particular cases. It's supposed to make general rules. So if a legislature were to say, "We give the attorney general the power to sue when he or she thinks that the constitution is being violated," that would be a general statute. So when, after that's passed and the governor signs it, if the attorney general thinks the constitution is being violated by some state agency, the attorney general could just sue. That would not need the permission of the legislature to do it in each particular case, because he's already gotten the general permission. As far as I know, as far as I can think about, the legislature of Arizona could do that either generally just say, as I just said, the attorney general can sue about any constitutional violation or they could limit it and say you could sue about constitutional violations that have to do with financial matters or have to do with discrimination matters or something like that. But they would do it in general, not in each particular case.

BRODIE: All right. That is Paul Bender, a law professor and dean emeritus at the Sandra Day O'Connor College of Law at ASU. Paul, good to talk to you. Thank you.

BENDER: Nice to talk to you, Mark.

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