Current, former elected officials weigh in on Brnovich request to Supreme Court




Attorney General Mark Brnovich. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

Current and former statewide officials are weighing in on Attorney General Mark Brnovich’s request that the Arizona Supreme Court recognize the broad legal powers he claims. Which side they are coming down on has much less to with partisan affiliation than with which office they held.

All four of Brnovich’s fellow statewide elected officials are asking the justices to reject his request that they overturn a 60-year-old ruling that limits his ability to initiate lawsuits against other agencies. That list includes two of Brnovich’s fellow Republicans, Gov. Doug Ducey and Treasurer Kimberly Yee, and two Democrats, Secretary of State Katie Hobbs and Superintendent of Public Instruction Kathy Hoffman.

Backing Brnovich’s opponents are two other former governors, Republican Fife Symington and Democrat Janet Napolitano – who served as Arizona’s attorney general before becoming governor – along with a plethora of business and other interest groups. Among them are staunch Ducey allies like the Arizona Chamber of Commerce and Industry and the Arizona Commerce Authority, a quasi-autonomous state agency over which the governor exercises a great deal of influence.

But Brnovich isn’t without allies, and that support, like the opposition, bridges the partisan divide. Four former Arizona attorneys general – Republicans Bob Corbin, Tom Horne and Jack La Sota, and Democrat Terry Goddard – are siding with him, as are a dozen attorneys general from other states and 50 former AGs from out of state.

At the heart of the case is Brnovich’s attempt to sue the Arizona Board of Regents over the high cost of tuition at the state’s public universities. The Arizona Constitution says tuition must be “as nearly free as possible,” and Brnovich contends that the regents have violated that requirement. Though the Arizona Supreme Court has rejected that argument in the past, Brnovich believes he has a better case.

The Supreme Court agreed to hear the case in February. The justices are scheduled to hear arguments in the case on April 16. 

But a lower court sidestepped the issue and threw out the case on the grounds that Brnovich lacks authority under state law to bring a lawsuit against another state entity. In making that ruling, the court relied on a 1960 Supreme Court decision called Arizona State Land Department v. McFate, in which the court ruled that state law gave the attorney general no authority to initiate such lawsuits.

For the three governors, the issue is about who has power. They argue that Brnovich is attempting to seize for his office power that resides with the governor’s office, which sits atop Arizona’s executive branch of government. They argue that the law provides no such authority to the attorney general, and that the Supreme Court, where Ducey has appointed five of its seven members, shouldn’t change that.

If Brnovich has the authority to sue over a disagreement in how the regents carry out policy, the governors asked, what would stop him from doing the same with other agencies?

“An attorney general who disagrees with the Department of Corrections over the State’s capital punishment protocol, for example, could, under the theory in the (attorney general’s) Petition, file suit to challenge it in cout,” the governors wrote. “Additional examples are as numerous as there are discretionary decisions in the executive branch.”

Hoffman and Hobbs, who recently clashed with Brnovich over where the secretary of state’s office had to remain open amid the current COVID-19 outbreak to accept candidates’ nominating petitions in person, framed the issue in terms of the attorney-client relationship. The attorney general’s office represents other state agencies, including the secretary of state’s office and Department of Education, and both would “benefit greatly from a productive attorney-client relationship built on trust and confidence.”

The 1960 ruling constrains the attorney general’s ability to sue his own clients, Hobbs and Hoffman contended. 

“In doing so, McFate defines an important safeguard of the Secretary and Superintendent’s relationship with the office they must turn to for day-to-day legal advice and representation,” they said in their brief to the Supreme Court.

And in a separate brief, Yee, the business groups and other interest groups argued that allowing the attorney general such broad legal powers would undermine the business community’s confidence when it comes to doing business with the state. Agencies like the Commerce Authority and treasurer’s office, along with private businesses, would feel compelled to get the attorney general’s blessing before undertaking actions that could lead to litigation, they wrote.

The four former Arizona attorneys general, however, argued that it is the AG’s prerogative to represent the people of the state if their constitutional rights are being violated. And, they said, their counterparts in other states have long had such authority. 

“The essential role of an Attorney General, relative to other constitutional offices, would be radically transformed if (the Arizona Board of Regents) or other state officials were able to exercise veto power over the Attorney General’s public interest litigation,” Corbin, Goddard, Horne and La Sota wrote. “The Attorney General’s independence is also critical to the preservation of ordered liberty because the state must speak with one voice in the courtroom.”

Correction: A previous version of this story incorrectly identified Jack La Sota as a Democrat. He is a Republican.