Arizona Supreme Court Hears Appeal of ABOR Tuition Lawsuit

PHOENIX – Attorney General Mark Brnovich’s ongoing effort to seek greater transparency and accountability from Arizona's public universities continued today before the Arizona Supreme Court. The lawsuit was brought against the Arizona Board of Regents (ABOR) over the skyrocketing costs of attending Arizona’s public universities, where in-state tuition and mandatory fees have risen more than 300 percent since 2003 despite a state constitutional requirement that such instruction be provided “as nearly free as possible.”

“This action was bought on behalf of Arizona’s hardworking students and families who are being priced out of an affordable higher education by our public universities,” said Attorney General Mark Brnovich. "ABOR ignores the constitutional requirement that instruction be provided nearly as free as possible and refuses to answer to anyone. I am hopeful the justices will recognize the ability of an Attorney General to bring such cases in defense of our constitution and on behalf of the people. No government entities, including public universities, are above the law.”

Instead of debating the merits of the tuition lawsuit, ABOR has skirted accountability by using Arizona State Land Department v. McFate, a 60-year-old Arizona Supreme Court ruling that limits the ability of the Attorney General to pursue litigation against a state agency. Late last year, the Court of Appeals unanimously opined that the McFate decision “appears to be flawed,” and urged the Supreme Court to revisit the matter, which the court did today.

Today, the AGO argued that McFate incorrectly restricts the power and independence of the Attorney General to file a lawsuit when there are matters of state concern or violations of the constitution.

"While no one can predict what the court is going to do, I believe we made a very compelling case on the need for an independent Attorney General," said Attorney General Brnovich. "This matter goes far beyond any individual Governor or Attorney General. It's about having the appropriate checks and balances in place to ensure that Arizona is always operating within the guidelines of its constitution."

Earlier this month, a bipartisan coalition 66 current and former Attorneys General from across the country weighed in on the matter, urging the Supreme Court to overturn McFate and arguing that the Attorney General has authority to uphold the law and the Arizona Constitution that goes beyond simply litigating on behalf of the Governor or some other executive or subdivision of state government. The Attorneys General stated, "The essential role of an Attorney General, relative to other constitutional offices, would be radically transformed if ABOR or other state officials were able to exercise veto power over the Attorney General's public interest litigation."

The case is now under review by the Arizona Supreme Court following today's Oral Argument. There is no date for when a decision will be announced.

Briefs Filed by the AGO

Amicus Briefs Filed in Support of AGO