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Arizona court rejects Brnovich’s attempt to revive tuition lawsuit

Arizona Attorney General Mark Brnovich (Flickr/Gage Skidmore)

PHOENIX – An Arizona appeals court on Tuesday rejected Attorney General Mark Brnovich’s latest effort to sue the board that governs the state’s three universities over tuition rates.

Brnovich has been attempting to sue the Arizona Board of Regents for nearly two years, arguing that tuition at Arizona State University, the University of Arizona and Northern Arizona University was so expensive that it violated the state constitution.

The lawsuit, which was initially filed in September 2017, said the board was violating the section of the constitution that says state educational institutions “shall be as nearly free as possible.”

In April 2018, a Maricopa County Superior Court judge tossed the case, saying the attorney general had no legal authority to sue the board about tuition. Brnovich appealed the decision in October.

On Tuesday, the Arizona Court of Appeals upheld the lower court’s decision.

“The Arizona Board of Regents appreciates the Arizona Court of Appeal’s decision today, affirming the dismissal of the tuition case filed by the Arizona attorney general,” ABOR Chair Larry E. Penley said in a statement issued Tuesday.

“As the citizen board appointed to oversee public university education, we work diligently every day to address the paramount issues of access and affordability to quality education at Arizona’s public universities.”

However, the three-judge appeals panel also said the Arizona Supreme Court case on which they based their decision may have been wrongly decided, and only the high court can reverse itself.

In January, Brnovich filed a petition to bypass the appeals court and go straight to the Arizona Supreme Court.

Brnovich has another action against ABOR regarding a Tempe hotel deal, although part of that suit already has been dismissed.

In July, Superior Court Judge Christopher Whitten ruled that the attorney general doesn’t have the authority to initiate action regarding state tax laws.

The tax court judge also ruled that the board was authorized to enter leases like the Omni hotel and convention center deal with Arizona State University, the subject of Brnovich’s lawsuit.

In addition, Whitten ruled that the property involved was exempt from taxation, so Brnovich’s assertion that taxpayers were losing out on the deal didn’t have standing.

However, he didn’t dismiss Brnovich’s claim that the deal violated the state constitution’s gift clause.

Whitten didn’t address the merits of the gift clause claim, but he ruled that the statute of limitations hadn’t expired before Brnovich made it.

The Associated Press contributed to this report.

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