Court working toward a decision on Brnovich tuition lawsuit
PHOENIX — The state’s high court has agreed to decide whether Attorney General Mark Brnovich needs the permission of Gov. Doug Ducey to sue the state’s three universities over what he says has been unconstitutional tuition hikes.
In a brief order, the justices said they want to review a Court of Appeals ruling that concluded that attorneys general can sue only when they have specific legal authority or have been given the go-ahead by the governor.
In this case, the appellate judges wrote, there is nothing in statute giving Brnovich such a right. And Ducey, who has been openly hostile to the legal challenge over tuition, has not agreed to let the lawsuit go forward.
In some ways the decision is not a surprise. Brnovich managed to get three former attorneys general to file a legal brief urging the justices to take up the issue.
More to the point, they want the high court to overturn a 1960 ruling that said attorneys general have only limited authority to sue. It was that ruling that the appellate judges relied on in tossing Brnovich out of court last year.
Hanging in the balance most immediately is the legality of the tuition rates set at the three state-run universities.
Brnovich contends that the sharp hikes of the past decade violate a constitutional provision that requires instruction to be “as nearly free as possible.’’
He also argues that the Board of Regents, which approved the rates, relied on extraneous -- and illegal -- outside factors to decide how much to charge students here, including what state-run universities elsewhere were charging.
But Brnovich has been unable to even get a judge to hear his evidence, what with lower courts concluding he has no legal right to sue.
The outcome of the legal fight will have implications far beyond the question of tuition. It ultimately will define whether this governor -- or any governor -- can block lawsuits with which he or she disagrees.
“This is bigger than the tuition lawsuit right now,’’ said Brnovich aide Ryan Anderson.
“The idea that the attorney general has to go to the governor to get permission to sign off on every piece of litigation, that’s just not right,’’ he said. “I don’t think that Arizonans, when they’re electing an independent officer such as the attorney general are anticipating an AG that has to go grovel or ask permission for every lawsuit.’’
No date has been set for the justices to hear the case.