Attorney General Mark Brnovich filed an appeal on Monday in the State’s lawsuit against the Arizona Board of Regents regarding their board’s tuition setting policies. The response brief presents purely legal questions that fundamentally impact the rule of law and judicial review in Arizona state government. The brief state’s that the Superior Court’s dismissal for lack of jurisdiction must be reversed for two independent reasons. First, A.R.S. § 35-212 authorizes all counts (Counts I-VI) of the First Amended Complaint (“FAC”). Second, A.R.S. § 41-193(A)(2) independently authorizes Counts I-VI. By dismissing the FAC, the Superior Court improperly thwarted judicial review of ABOR’s actions.
This appeal raises the question of whether Arizona law enables the Attorney General to go to court and obtain judicial review to protect the rights of the people. Over the past sixteen years, the Arizona Board of Regents (“ABOR”) has raised tuition and mandatory fees for in-state undergraduates as though it were unconstrained by law. Notwithstanding the requirement that “the instruction furnished [at Arizona’s public universities] shall be as nearly free as possible,” Ariz. Const. art. XI, § 6, ABOR’s official policy did not even include the cost of instruction as a factor in setting tuition. Instead, ABOR used other factors such as students’ ability to pay by taking on debt. Using these factors, ABOR increased tuition in lock-step across all three universities by over 300%, greatly exceeding funding cuts from the Legislature. ABOR also has imposed mandatory fees unrelated to instruction and charged higher rates to part-time and online students. After unlawfully hiking the price of attendance, ABOR then claimed “unaffordability” as grounds to ignore yet another law, voter-enacted Proposition 300, which bars in-state classification for students lacking lawful immigration status. See A.R.S. § 15-1803. ABOR violated Proposition 300 by classifying certain ineligible students as in-state, and it continued this policy even after the unanimous conclusion in State ex rel. Brnovich v. MCCCD, 242 Ariz. 325 (App. 2017), which this Court unanimously affirmed, 243 Ariz. 539 (2018).
Additionally, Attorney General Brnovich is asking for the case to be consolidated and transferred to the Arizona Supreme Court. When the Attorney General sued on behalf of the State in Superior Court under A.R.S. § 35-212, seeking to enjoin and recover ABOR’s unlawful payments subsidizing the in-state tuition of ineligible students, ABOR moved to dismiss. It contended that the Attorney General may come to court only when authorized by specific statute, and § 35-212 did not authorize the instant lawsuit because ABOR did not make any “payments” under that statute, among other grounds for dismissal. The Superior Court agreed and dismissed the Attorney General’s claims. The State timely appealed. See State v. Arizona Board of Regents, No. 1 CA-CV 18-0420 (the “Underlying Appeal”).
Pursuant to ARCAP 6 and 19, the State of Arizona ex rel. Mark Brnovich, Attorney General (the “State”) respectfully moves to 1) transfer the Underlying Appeal to this Court; and 2) consolidate consideration of that appeal with the State’s forthcoming Original Petition for Special Action against ABOR, No. 18-_____ (the “Original Petition”). Transfer is proper because the Underlying Appeal raises jurisdictional questions that only this Court can resolve given its prior decisions and because this matter presents other extraordinary circumstances. Consolidation is also appropriate because the issues in the two cases overlap significantly.