Arizona Supreme Court keeps AG Mark Brnovich’s tuition lawsuit alive

Arizona Attorney General Mark Brnovich (AP Photo/Ross D. Franklin)

PHOENIX – Arizona Attorney General Mark Brnovich won a battle Tuesday in one of his lawsuits against the governing board of the state’s public universities.

The Arizona Supreme Court agreed to hear an appeal of the dismissal of Brnovich’s claim that tuition at Arizona State University, the University of Arizona and Northern Arizona University is so high it violates the state constitution.

“For the last 15 years, Arizona students and their families have struggled to afford a college education at our state universities with no possible relief in sight,” Brnovich said in a press release.

“The Supreme Court today offered a glimmer of hope — an open door for a necessary debate regarding the authority of the attorney general to defend the state constitution and affordability of higher education at our public universities.”

Arizona Board of Regents Chair Larry Penley said Brnovich has created a “false narrative” that is negatively impacting the state.

“The lawsuit has been and continues to be a considerable waste of time and resources, both for the board and the state of Arizona,” Penley said in a statement Wednesday.

Brnovich filed the lawsuit in September 2017, alleging ABOR has been violating the section of the Arizona Constitution that says state educational institutions “shall be as nearly free as possible.”

In April 2018, a Maricopa County Superior Court judge ruled the attorney general had no legal authority to sue the board about tuition. The Arizona Court of Appeals upheld the ruling in August 2019.

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.

“Our constitution limits the attorney general’s powers to those ‘prescribed by law,’” Penley said. “For over 60 years, Arizona courts have consistently held that this provision means what it says: The attorney general holds only the powers granted by the state Legislature.”

In January 2019, Brnovich had filed a petition to bypass the appeals court and go straight to the Arizona Supreme Court.

The state’s highest court said Tuesday it will review whether the trial court made an error when it dismissed the case.

Both parties were given 20 days to file supplemental briefs, with additional filings due March 17 and March 31. Oral arguments will be scheduled at a later date.

Last week, Brnovich was dealt a blow in a separate action against the Board of Regents.

A Superior Court judge ordered the state to pay ABOR nearly $1 million for costs related to a dismissed lawsuit filed by Brnovich last year over an ASU real estate deal.

Brnovich’s office said it plans to appeal both the original decision to dismiss that case and the fee order.