PHOENIX — Attorney General Mark Brnovich is trying again to get the legal go-ahead to sue the Arizona Board of Regents over what he claims is its illegal methods of setting tuition at the state’s three universities.
Assistant Attorney General Beau Roysden told the Arizona Supreme Court on Thursday that his boss has an inherent right to sue and go to court “on behalf of the public interest.” And in this case, that involves Brnovich’s contention that the board is ignoring the constitutional requirement that tuition be set based on the actual cost of providing instruction.
But Brnovich has so far been thwarted in his attempt to make that argument after both a trial judge and the state Court of Appeals ruled he needs either specific statutory authority to sue the regents, which he does not have, or permission of Gov. Doug Ducey, who will not grant it.
So Brnovich’s office wants the justices to conclude the lower courts were wrong and that he does have such inherent power.
But Joel Nomkin, the private attorney hired by the regents, told the justices that the Arizona Constitution spells out the role of the governor, including the power to “take care that the laws be faithfully executed.”
By contrast, he said, the Constitution says the attorney general has only those powers given to him by the Legislature. And Nomkin said while lawmakers have enumerated things the attorney general can do, the power to file suit against a state agency is not one of them.
What the court decides will have broader implications. The broader question is whether the attorney general can ignore the will of the governor.
That’s precisely the question Justice Ann Scott Timmer asked Roysden.
“I think if there was a situation where the attorney general felt that an agency was acting illegally and wanted to come to the court and ask the court to review that, the governor would not have the authority to tell the attorney general, ‘Don’t bring this to light,’ any more than the governor would have the authority to tell the attorney general, ‘Stop bringing information to a grand jury because I don’t want one of my subordinates to potentially be subject to criminal prosecution,’” Roysden responded. “The attorney general has that independent role.”
The importance of the precedents this case will set prompted Ducey to weigh in, hiring Dominic Draye, a former assistant attorney general, to argue Brnovich has overstepped his bounds.
Draye cited not just Ducey’s constitutional authority but the fact that the Legislature has separately given the Board of Regents specific authority to set tuition.
“There is no similar statute authorizing the attorney general to second-guess their calculations and bring suit against the regents in order to impose his policy preference over their own,” Draye said.
The justices did not indicate when they will rule.
What they decide will determine if Brnovich can go back to trial court and pursue his original claim, that students are being charged too much.
