Arizona Supreme Court Establishes Limits on Attorney General’s Litigative Authority: Brnovich v. Arizona Board of Regents

Introduction

The case of State of Arizona, ex rel. Mark Brnovich, Attorney General, v. Arizona Board of Regents (476 P.3d 307) presents a pivotal examination of the statutory authority vested in the Arizona Attorney General (AG) to initiate litigation against state agencies. This comprehensive commentary delves into the background, key legal issues, judicial reasoning, and the broader implications of the Arizona Supreme Court's decision rendered on November 25, 2020.

Summary of the Judgment

The Attorney General of Arizona filed a lawsuit against the Arizona Board of Regents (ABOR) alleging violations of the state constitution and statutory provisions related to tuition policies and the unlawful expenditure of public funds. The trial court dismissed the lawsuit, a decision affirmed by the Court of Appeals. The Arizona Supreme Court upheld the dismissal of most claims but reversed the dismissal of one specific count, thereby reinstating a portion of the Attorney General’s claims concerning unlawful expenditures.

Analysis

Precedents Cited

The judgment extensively references several pivotal cases that frame the legal context:

State ex rel. Brnovich v. Maricopa Community College District Board: Established that it is illegal for state postsecondary institutions to award in-state tuition to students not lawfully present.
ARIZONA STATE LAND DEPARTMENT v. McFATE: Clarified the scope of the Attorney General’s authority under A.R.S. § 41-193(A)(2), limiting it to prosecuting existing cases rather than initiating new actions.
State ex rel. Morrison v. Thomas and STATE EX REL. WOODS v. BLOCK: Supplementary cases exploring the AG’s prosecutorial powers and authority to challenge government actions.
Fund Manager, Public Safety Personnel Retirement System v. Corbin: Discussed the AG’s discretionary powers under A.R.S. § 35-212(A).
Coleman v. City of Mesa and Biggs v. Cooper: Addressed standards for judicial dismissal of complaints.

These precedents collectively establish a framework that restricts the AG’s authority to litigate based solely on specific statutory grants rather than broad discretionary powers.

Legal Reasoning

The Court meticulously analyzed whether the AG possessed statutory authority under A.R.S. § 41-193(A)(2) and § 35-212(A) to pursue the claims against ABOR. The reasoning unfolded in several key steps:

Statutory Interpretation of A.R.S. § 41-193(A)(2): The AG contended a broad interpretation allowing initiation of litigation against state agencies. However, referencing McFate, the Court emphasized that "prosecute" in this context does not include initiating new actions but is limited to ongoing cases.
Doctrine of Stare Decisis: Acknowledging the long-standing precedent set by McFate, the Court was hesitant to overturn it, highlighting the importance of legal consistency and predictability.
Legislative Intent and Specific Grants: The Court noted over a hundred specific statutory grants empowering the AG to undertake various legal actions, suggesting that a broad, open-ended authority was never intended.
A.R.S. § 35-212(A) Analysis: While dismissal of claims under this statute was initially upheld, the Court identified that the Attorney General’s Count VI—alleging illegal expenditure of public funds—fall within the scope of § 35-212(A), warranting reinstatement.
Legislative Immunity Argument: The Court dismissed ABOR’s claim of legislative immunity, clarifying that it protects individual legislators from personal liability, not the state agencies from lawful legal challenges.

The Court concluded that while the AG lacks general authority to file lawsuits against state agencies absent specific statutory powers, he retains the authority to challenge certain financial expenditures as per § 35-212(A).

Impact

This judgment significantly delineates the boundaries of the Arizona Attorney General’s powers, reinforcing that such authority is confined to specific, legislatively granted mandates. The implications include:

Limitation of AG’s Litigative Scope: The AG cannot broadly challenge state agencies’ policies unless explicitly authorized by statute.
Strengthening Legislative Control: By emphasizing specific statutory grants, the Court reinforces the legislature’s role in defining the AG’s duties.
Precedential Stability: Upholding McFate maintains legal consistency, discouraging unilateral expansions of executive power without legislative endorsement.
Framework for Future Litigation: The decision provides a clear guideline for future cases involving the AG’s authority, ensuring that challenges are grounded in explicit statutory provisions.

Moreover, reinstating Count VI paves the way for addressing alleged unlawful fiscal practices by state agencies, albeit within the constrained authority granted by § 35-212(A).

Complex Concepts Simplified

Attorney General’s Statutory Authority

Under the Arizona Constitution, the AG’s powers are not innate but are defined and limited by specific statutes. A.R.S. § 41-193 delineates the general prosecutorial duties, but does not grant broad discretion to initiate legal actions against any state entity.

Stare Decisis

This legal doctrine emphasizes the importance of adhering to precedent to ensure stability and predictability in the law. In this case, the Court chose to uphold McFate to maintain consistency.

A.R.S. § 35-212(A)

This statute authorizes the AG to take action to prevent illegal expenditures of public funds or recover such funds, thereby providing a specific avenue for legal challenges related to fiscal misconduct by state agencies.

Conclusion

The Arizona Supreme Court’s decision in State of Arizona, ex rel. Brnovich v. Arizona Board of Regents delineates the precise scope of the Attorney General’s authority to litigate against state agencies. By upholding McFate, the Court emphasizes the necessity of specific statutory authorization for the AG to initiate lawsuits, thereby preventing an unchecked expansion of executive power. However, by reinstating Count VI under A.R.S. § 35-212(A), the decision affirms the AG’s role in overseeing and ensuring the lawful expenditure of public funds. This balance ensures that the AG can perform oversight functions without overstepping into areas that require explicit legislative mandate.

The judgment underscores the importance of clear statutory frameworks in defining governmental roles and preserves the separation of powers by resisting the broad interpretation of prosecutorial authority. For future cases, this decision serves as a critical reference point in assessing the limits and possibilities of the Attorney General’s legal actions within Arizona’s judicial landscape.