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IN THE SUPREME COURT

STATE OF ARIZONA

STATE OF ARIZONA, ex rel. Arizona Supreme Court


MARK BRNOVICH, Attorney No. CV-19-0027-SA
General,

Petitioner-Appellant,
v.

ARIZONA BOARD OF REGENTS,


Respondent-Appellee.

RESPONSE TO ORIGINAL PETITION FOR SPECIAL ACTION

Paul F. Eckstein (#001822)


Joel W. Nomkin (#011939)
Shane R. Swindle (#011738)
Thomas D. Ryerson (#028073)
Austin C. Yost (#034602)
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
PEckstein@perkinscoie.com
JNomkin@perkinscoie.com
SSwindle@perkinscoie.com
TRyerson@perkinscoie.com
AYost@perkinscoie.com
DocketPHX@perkinscoie.com
Attorneys for Respondent-Appellee
Arizona Board of Regents
February 27, 2019

143129098.10 1
TABLE OF CONTENTS

Page(s)

INTRODUCTION .....................................................................................................1
STATEMENT OF THE CASE AND PROCEDURAL BACKGROUND ............... 2
ISSUES PRESENTED...............................................................................................4
STATEMENT OF FACTS ........................................................................................4
JURISDICTIONAL STATEMENT ........................................................................11
A. Special action jurisdiction is not proper because the AG has a “plain,
speedy, and adequate remedy by appeal”—his fully briefed appeal pending
in the court of appeals. .....................................................................................12
B. Special action jurisdiction is not proper because the AG’s petition
raises numerous disputed facts.........................................................................12
C. Special action jurisdiction is not proper because the AG’s petition
does not require an immediate resolution. .......................................................13
D. Special action jurisdiction is not proper because the AG lacks the
statutory authority to bring this special action. ................................................14
ARGUMENT ...........................................................................................................20
A. The AG’s special action claims are barred by the trial court’s
dismissal with prejudice of his identical suit. ..................................................20
B. The AG’s claims under the “nearly free as possible” clause
present nonjusticiable political questions. .......................................................24
C. The AG’s claims are barred by the Board’s legislative immunity. .........31
ARCAP 21(A) ATTORNEY’S FEES NOTICE .....................................................35
CONCLUSION ........................................................................................................35

i
TABLE OF AUTHORITIES
Page(s)
CASES

Ariz. Indep. Redistricting Comm’n v. Brewer,


275 P.3d 1267 (2012)....................................................................................13, 30

Ariz. Indep. Redistricting Comm’n v. Fields,


75 P.3d 1088 (App. 2003).............................................................................32, 34

Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting


Comm’n,
208 P.3d 676 (2009)......................................................................................32, 33

Ariz. State Land Dep’t v. McFate,


348 P.2d 912 (1960).....................................................................................passim
Arnold v. Ariz. Dep’t of Health Servs.,
775 P.2d 521 (1989)............................................................................................33
Baker v. Carr,
369 U.S. 186 (1962) ............................................................................................28
Bogan v. Scott-Harris,
523 U.S. 44 (1998) ..............................................................................................35
Brewer v. Burns,
213 P.3d 671 (2009)......................................................................................13, 28
Cave Creek Unified Sch. Dist. v. Ducey,
308 P.3d 1152 (2013)..........................................................................................33
Champlin v. Sargeant In & For Cty. of Maricopa,
965 P.2d 763 (1998)............................................................................................17
Crosby-Garbotz v. Fell In & For Cty. of Pima,
2019 WL 438194 (2019).....................................................................................22

Dobson v. State ex rel. Comm’n on Appellate Ct. Appointments,


309 P.3d 1289 (2013)..............................................................................11, 13, 33

ii
143129098.10
Fogliano v. Brain ex rel. Cty. of Maricopa,
270 P.3d 839 (App. 2011)...................................................................................28

Forbach v. Steinfeld,
273 P. 6 (1928)....................................................................................................15

Forty-Seventh Legislature v. Napolitano,


143 P.3d 1023 (2006)..........................................................................................28

Gallardo v. State,
336 P.3d 717 (2014)............................................................................................33

Galloway v. Vanderpool,
69 P.3d 23 (2003)................................................................................................16

Haywood Secs., Inc. v. Ehrlich,


149 P.3d 738 (2007)......................................................................................11, 13
Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty.,
684 F.3d 462 (4th Cir. 2012) ..............................................................................35

Kromko v. Ariz. Bd. of Regents,


146 P.3d 1016 (App. 2006).................................................................................24

Kromko v. Arizona Board of Regents,


165 P.3d 168 (2007).....................................................................................passim
League of Ariz. Cities & Towns v. Martin,
201 P.3d 517 (2009)............................................................................................33
Nicaise v. Sundaram,
432 P.3d 925 (2019)............................................................................................17

Nixon v. United States,


506 U.S. 224 (1993) ............................................................................................30

Phillips v. Ariz. Bd. of Regents,


601 P.2d 596 (1979)............................................................................................22

Phillips v. O’Neil,
407 P.3d 71 (2017)..............................................................................................23

143129098.10 iii
Pompa v. Super. Ct.,
931 P.2d 431 (App. 1997)...................................................................................12

Raniere v. Microsoft Corp.,


887 F.3d 1298, (Fed. Cir. 2018) .........................................................................21

Rateree v. Rockett,
852 F.2d 946 (7th Cir. 1988) ..............................................................................35

Ratzlaf v. United States,


510 U.S. 135 (1994) ............................................................................................18

Santa Rita Mining Co. v. Dep’t of Prop. Valuation,


530 P.2d 360 (1975)............................................................................................19

Schmidt v. Contra Costa Cty.,


693 F.3d 1122 (9th Cir. 2012) ............................................................................32
State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd.,
416 P.3d 803 (2018)......................................................................................15, 18

State ex rel. Indus. Comm’n v. Pressley,


250 P.2d 992 (1952)............................................................................................16

State ex rel. Montgomery v. Mathis,


290 P.3d 1226 (App. 2012).................................................................................31
State ex rel. Morrison v. Thomas,
297 P.2d 624 (1956).....................................................................................passim
State ex rel. Woods v. Block,
942 P.2d 428 (1997)............................................................................................14

State v. Maestas,
417 P.3d 774 (2018)......................................................................................28, 29

Stonecreek Bldg. Co. v. Shure,


162 P.3d 675 (App. 2007)...................................................................................26

Sup. Ct. of Va. v. Consumers Union of U.S., Inc.,


446 U.S. 719 (1980) ............................................................................................32

143129098.10 iv
Twin City Fire Ins. Co. v. Burke,
63 P.3d 282 (2003)..............................................................................................13

Univ. of Pittsburgh v. Varian Med. Sys., Inc.,


569 F.3d 1328 (Fed. Cir. 2009) ..........................................................................21

W.T. Rawleigh Co. v. Spencer,


118 P.2d 674 (1941)............................................................................................15

Wigglesworth v. Mauldin,
990 P.2d 26 (App. 1999).....................................................................................20

STATUTES

A.R.S. § 3-633..........................................................................................................17

A.R.S. § 3-734..........................................................................................................17
A.R.S. § 12-348.01...................................................................................................35

A.R.S. § 15-1626(A)(5) ...........................................................................................33


A.R.S. § 15-1626(A)(13) .........................................................................................34

A.R.S. § 23-929........................................................................................................17
A.R.S. § 35-212....................................................................................................2, 21
A.R.S. § 41-193........................................................................................................16

A.R.S. § 41-193(A)(1) ......................................................................................passim

A.R.S. § 41-193(A)(2) ......................................................................................passim


A.R.S. § 42-14257(2) ...............................................................................................17

1976 Ariz. Sess. Laws, ch. 94, § 1 ...........................................................................16

1995 Ariz. Sess. Laws, ch. 94, § 2 ...........................................................................16


OTHER AUTHORITIES

Ariz. Const. art. XI, § 10 ..........................................................................................31

143129098.10 v
Ariz. House Bill 2204,
https://www.azleg.gov/legtext/53leg/2r/bills/hb2204p.htm ...............................16

Arizona Constitution article III ................................................................................28

Arizona Constitution article XI, section 6 .........................................................24, 26

Arizona Rule of Civil Procedure 41(b) ....................................................................22

143129098.10 vi
INTRODUCTION
An original special action in this Court is only appropriate in the rarest of
circumstances. This original special action by the Attorney General (“AG”) is

unprecedented and takes forum shopping to an embarrassing level. The AG’s


special action re-raises claims that were originally brought by the AG 17 months ago
in superior court, were ruled on by that court ten months ago, and were appealed to
the court of appeals seven months ago (where briefing is complete). The petition is
wrong on the law and purports to raise numerous factual disputes that this Court is
not equipped to decide. This Court should decline to exercise jurisdiction, and the

Arizona Board of Regents (“the Board”) should be awarded its attorney fees and
costs for having to respond to this attempt by the AG to take a third bite at the same
apple.
If this Court were to accept jurisdiction, then it should deny the relief
requested for three reasons. First, the AG’s claims are claim barred because the trial
court dismissed his identical suit with prejudice ten months ago. The trial court’s
dismissal with prejudice was correct and bars the AG’s claims here. Second, the
AG’s claims present non-justiciable political questions for all the same reasons
previously argued by the AG on behalf of the Board and accepted by this Court in
Kromko v. Arizona Board of Regents, 216 Ariz. 190, 165 P.3d 168 (2007). Third,
the AG’s claims fail because the Board is immune from suit under the legislative
immunity doctrine. The AG could not bring suit against the Legislature for the
manner it set tuition, and as the Legislature’s delegee, the Board is likewise immune
from suit.

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STATEMENT OF THE CASE AND PROCEDURAL BACKGROUND
In September 2017, the AG sued the Board—his client—in superior court,
alleging in counts I through V of his complaint that the Board violated the Arizona

Constitution by charging resident students too much in tuition, and in count VI that
the Board violated two Arizona statutes by charging resident Deferred Action for
Childhood Arrival students too little. Complaint, No. CV-2017-012115 (Sept. 8,
2017). In the trial court, the AG cited only one statute (A.R.S. § 35-212) as the
source of his authority to bring all six counts of his complaint. Specifically, the AG
argued that A.R.S. § 35-212, which permits him to file suit to enjoin or recover an

“illegal payment of public monies,” authorized him to bring count VI, and that
counts I through V were “factually intertwined” with count VI and could therefore
be brought in the same case. Ten months ago, the trial court dismissed the AG’s
complaint with prejudice, holding that the AG lacked the statutory authority to bring
any of the six counts.1 See Ariz. State Land Dep’t v. McFate, 87 Ariz. 139, 144, 348
P.2d 912, 915 (1960) (holding that while “there are occasions on which the Attorney
General may initiate proceedings on behalf of the State, . . . these instances are
dependent upon specific statutory grants of power”). At the court of appeals, the

1
The Board filed three separate motions to dismiss the AG’s complaint in the
trial court: (1) The AG did not have the statutory authority to bring any of his six
counts; (2) Counts I-V presented non-justiciable political questions under this
Court’s decision in Kromko v. Arizona Board of Regents, 216 Ariz. 190, 165 P.3d
168 (2007); and (3) In setting tuition, the Board was engaging in policy- and budget-
making decisions and was immune from suit under the legislative immunity
doctrine. The trial court granted the Board’s first motion and therefore found it
unnecessary to reach the latter two. All three arguments have been fully briefed to
the court of appeals.

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AG has asked for a do-over, asserting a new statutory basis for his complaint, A.R.S.
§ 41-193(A)(2), and arguing for the first time that McFate should be overruled so

that the AG would have unbridled discretion to bring this and any other case. State’s
Opening Brief, No. 1 CA-CV 18-0420 (Oct. 24, 2018) (“Op. Br.”). Probably
worried that the court of appeals would hold that he waived these brand-new
arguments, the AG now seeks yet another do-over in this Court.
The AG filed this original special action petition, restating the same case that
the trial court dismissed with prejudice ten months ago and that is fully briefed and
currently pending in the court of appeals. The only difference between the AG’s
first suit and his special action petition is that the AG now asserts, for the first time,
yet another alleged source of authority to bring this case, A.R.S. § 41-193(A)(1).2

In addition, the AG took two other extraordinary procedural steps to paper over his
failure to raise arguments in the trial court on his first go around: (1) he moved to
bypass the court of appeals and transfer his appeal directly to this Court, and (2) he
moved to consolidate this special action with his appeal and, if necessary, to remand
the consolidated case to superior court for trial. Original Petition for Special Action,
No. CV-19-0027-SA (Jan. 28, 2019).

2
The AG argued for the first time in the court of appeals that A.R.S. § 41-
193(A)(2) authorized his complaint. That statute provides that the department of
law “shall . . . [a]t the direction of the governor or when deemed necessary by the
attorney general, prosecute and defend any proceeding in a state court other than the
supreme court in which the state or an officer thereof is a party or has an interest.”
The AG argues here that A.R.S. § 41-193(A)(1) authorizes his original special
action. That statute provides that the department of law “shall . . . [p]rosecute and
defend in the supreme court all proceedings in which the state or an officer thereof
in his official capacity is a party.”

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ISSUES PRESENTED
1. This Court should decline original jurisdiction over the AG’s special
action petition because: (a) the AG has “an equally plain, speedy, and adequate

remedy by appeal”—his fully briefed appeal pending in the court of appeals; (b) the
petition raises a host of contested factual disputes and is not limited to “pure
questions of law”; (c) the legal issues raised in the petition do not require an
“immediate resolution,” and no need for immediate resolution is alleged; and (d) the
AG lacks the statutory authority to initiate his original special action in this Court.
2. If this Court accepts jurisdiction, then this Court should deny the

requested relief because: (a) the AG’s claims are precluded by the trial court’s
dismissal of his identical suit with prejudice ten months ago; (b) the AG’s
constitutional claims present non-justiciable political questions under Kromko; and
(c) the Board is immune from suit for the manner it sets tuition.
STATEMENT OF FACTS
The AG’s special action petition presents a host of contested factual assertions
that, as noted further below, foreclose any original special action relief. But in any
case, the AG’s facts are chock-full of errors. 3 Overriding the AG’s allegations is his
suggestion that the people of Arizona have been disserved by Arizona’s public
universities because tuition increases have made a college education inaccessible.

3
The Board will not attempt to refute each of the AG’s misleading factual
allegations in this Response. The important point is that there are myriad factual
disputes that should not be resolved by this Court in an original special action.

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143129098.10
Data from the last decade show otherwise. The following charts 4 compare
several factors 5 for each of Arizona’s three public universities, in 2008 dollars and

on a per-resident-student basis: 6

4
The Board prepared all the charts using publicly available data.
5
The charts compare: (1) educational and general expenditures (“E&G”), (2)
the “sticker price” of tuition (“Tuition and Fees-Sticker Price”), (3) appropriations
made by the Legislature (“State Support”), and (4) net tuition paid by students—
found by adding the base tuition and mandatory fees and then subtracting gift aid
(“Net Tuition Paid”).
6
The change in tuition must be assessed on a per-student basis because the
population of students has substantially increased. The AG points out (at 13) that,
while the “State is providing $390 million less in revenue, . . . the Universities were
charging $1.5 billion more in 2017 than they were charging in 2008.” But the AG
ignores that total student enrollment across Arizona’s public universities increased
from 134,056 students in 2007 to 186,398 students in 2018—an increase of more
than 52,000. Attempting to build a case while relying on aggregate total tuition
revenue increases without taking into account increases in student population is
highly misleading and drastically overstates what is happening.

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See Appendix, Charts A–C. These charts and the underlying data establish the
following facts:

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The cost to educate each student (represented by the yellow line) has not
meaningfully changed, and in most cases has decreased, as the universities

provide a more cost-effective education. In 2008 dollars, the cost to educate a


student at ASU has dropped from $15,668 in 2008 to $14,728 in 2018. At NAU,
that cost has decreased from $14,918 to $11,781. Only U of A has seen an increase,
from $15,532 to $16,569. All told, on a per-student basis, undergraduate educations
in the state are provided about as, if not more, cost-effectively than they were one
decade ago.
While the universities have worked to ensure that educations are
provided cost-effectively, state support (represented by the orange blocks) has
precipitously declined. At ASU, state support on a per-student basis has dropped,
in 2008 dollars, from $10,967 in 2008 to $5,089 in 2018—a decline of almost $6,000
per student. At NAU, that amount has decreased from $10,898 to $4,661—a decline
of over $6,000 per student. At U of A, the decline in state support was even more
severe, dropping from $13,606 in 2008 to $5,009 in 2018—a drop of over $8,000
per student. This extreme decline in state support is notable on a national scale. As
the following chart demonstrates, between 2008 and 2018, Arizona had the largest
drop in state support on a per capita basis:

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See Appendix, Charts G–H. Stated differently, in 2008, Arizona’s General Fund
appropriation per resident student was about $12,000. In 2017, that number had
fallen to $5,997 per resident student. In 2003, the State provided about $35,000 per
degree awarded by ASU. Today, that figure is $13,425 per degree awarded.
The universities have gone far to ensure that students are not burdened
with these severe declines in appropriations. The increase in the “sticker price”
has been less than the decrease in state appropriations. For example, while state
support for U of A students has dropped over $8,000 per student, the “sticker price”
(represented by the grey line) has gone up less than $6,000—from $5,037 in 2008 to
$10,802 in 2018. Likewise, at NAU, students have over $6,000 less in state support
but only pay less than $5,000 more—from $4,841 in 2008 to $9,770 in 2018.
Finally, ASU students receive almost $6,000 less in state support—but pay less than

$5,000 more. See Appendix, Charts A–C.

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The efforts to protect students from the decline in state appropriations is seen
even more starkly when considering the “Net Tuition Paid” (represented by the blue

blocks)—that is, tuition and fees less gift aid.7 When considering this figure, which
more accurately assesses the financial burden on students for a higher education, the
increase over the past 10 years has been modest when compared with the decrease
in state appropriations:
University 2008 Net 2018 Net Increase in Decrease in
Tuition Paid Tuition Paid Net Tuition State
Paid Support

ASU $2,166 $3,550 $1,384 $5,878

NAU $2,113 $2,370 $257 $6,237

U of A $1,801 $4,611 $2,810 $8,597

Finally, in no year has the price for an undergraduate education—


whether measured by the “sticker price” or by the “Net Tuition Paid”—ever
exceeded the cost to educate students.8 In other words, resident students, in every
year, for every public university, always pay less than the cost of the education
provided to them. How much “freer” can an education get to satisfy the Arizona
Constitution’s demand?

7
“Net Tuition Paid” only offsets tuition by gift aid, so it excludes work study
earnings, Hope tax credits, military benefits, and loans.
8
Even in nominal dollars, the cost to educate students has, every year, been
more than the price for an undergraduate education. See Appendix, Charts D–F.
Consistent with these facts, the AG asked (Op. Br. at 14) that the court of appeals in
his identical suit accept as true his assertion that “in-state tuition is below the actual
costs of providing instruction.”

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The Board’s and the universities’ efforts to keep education as nearly free as
possible despite severe declines in state financial support can be seen not only in the

data, but also in the dividends it pays, both for the students that graduate and for
Arizona as a whole. The financial burdens faced by students after graduation are
low. Nearly half of ASU students graduate without a penny in debt. For students
who do have debt that must be repaid, ASU’s average debt per student ranks in the
25th percentile among public four-year universities nationally. At the same time,
ASU’s students far outperform those who came before them. For instance:

• In 2017, ASU’s freshman retention rate was a record 86%, compared to 77%
in 2002. See Appendix, Chart I.

• In 2017, ASU’s four-year graduation rate was 52%, compared to 28% in 2002.
See Appendix, Chart J; see also Appendix, Chart K.9

• In 2017, ASU’s six-year graduation rate was a record 71%, compared to 57%
in 2002. See Appendix, Chart J.
ASU has increased the quality of education and decreased its price, all while
continuing to diversify the student body:

• Today, ASU enrolls 23,582 undergraduate students who are first-generation


college students. In 2002, that number was just 7,560.

• Today, 48% of ASU’s resident freshmen are students of color. In 2002, that
number was 28%.

• Today, ASU graduates more Native American students than the entire
University of California university system—despite the fact that the State of
California has a larger Native American population than any state in the U.S.
Other examples abound.

9
Of course, the faster students graduate, the more money students save on
tuition costs.

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All told, the story of the Board and the universities over the past two decades
is not one—as the AG claims—of “skyrocketing tuition.” Instead, the story is one

of a university system, strained by a growing student body and decreasing state


appropriations, ensuring that strain is not felt by the students themselves. Those
students, in turn, are free to learn, grow, and ultimately make Arizona a better place.
JURISDICTIONAL STATEMENT
This Court should decline to accept jurisdiction over the AG’s original special
action petition for four reasons. First, the AG has “an equally plain, speedy, and
adequate remedy by appeal.” Arizona Rule of Procedure for Special Actions
(“ARPSA”) 1(a). All the AG’s procedural maneuvering ten months after the trial
court dismissed his identical suit with prejudice does not affect the adequacy of the
AG’s appellate remedy—that appeal is fully briefed and currently pending in the

court of appeals. Second, the AG’s special action petition does not present “pure
question[s] of law,” Haywood Secs., Inc. v. Ehrlich, 214 Ariz. 114, 115 ¶ 6, 149 P.3d
738, 749 (2007), but rather is jam-packed with factual assertions that the Board
contests. Third, the AG’s special action petition does not require an “immediate”
resolution. See Dobson v. State ex rel. Comm’n on Appellate Ct. Appointments, 233
Ariz. 119, 121 ¶ 8, 309 P.3d 1289, 1291 (2013). The AG filed an identical suit in
the trial court 17 months ago, appealed that court’s ruling dismissing his suit seven
months ago, and fully briefed arguments in the court of appeals. Fourth, the AG
lacks the statutory authority to bring this special action. See McFate, 87 Ariz. at
144, 348 P.2d at 915. The AG cannot avoid the complete absence of statutory
authority to bring this suit simply by restating his trial court claims as an original

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special action before this Court. Neither A.R.S. § 41-193(A)(1) nor this Court’s
decision in State ex rel. Morrison v. Thomas, 80 Ariz. 327, 297 P.2d 624 (1956),

authorize the AG to initiate this original special action.


A. Special action jurisdiction is not proper because the AG has a
“plain, speedy, and adequate remedy by appeal”—his fully briefed
appeal pending in the court of appeals.
Arizona courts generally accept jurisdiction over special action petitions only
when there is no other “equally plain, speedy, and adequate remedy.” ARPSA 1(a);
see also Pompa v. Super. Ct., 187 Ariz. 531, 533, 931 P.2d 431, 433 (App. 1997)
(stating that special action jurisdiction “is generally accepted only in those cases in

which ‘justice cannot be satisfactorily obtained by other means’”) (quoting King v.


Super. Ct., 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983)).
Here, the AG unquestionably has an “equally plain, speedy, and adequate
remedy by appeal”—his appeal in the identical suit (relying upon the same facts,
attacking the same policies, and making the same claims) filed more than a year ago
and which is fully briefed and currently pending in the court of appeals (No. 1 CA-
CV 18-0420). At bottom, the AG’s original special action is nothing more than a
thinly-veiled attempt to avoid the appellate record in his identical suit. There is no
need for a separate original special action here, and this Court should not

countenance or encourage the AG’s procedural gamesmanship.


B. Special action jurisdiction is not proper because the AG’s petition
raises numerous disputed facts.
Even were there not an “equally plain, speedy, and adequate remedy by

appeal,” ARPSA 1(a), which there is, special action jurisdiction is reserved for

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143129098.10
matters presenting “pure question[s] of law” and involving matters of “statewide
significance.” Haywood, 214 Ariz. at 115 ¶ 6, 149 P.3d at 739; see also Twin City

Fire Ins. Co. v. Burke, 204 Ariz. 251, 252 ¶ 3, 63 P.3d 282, 283 (2003) (same); cf.
Brewer v. Burns, 222 Ariz. 234, 237 ¶ 9, 213 P.3d 671, 674 (2009) (accepting special
action jurisdiction where the “relevant facts [were] undisputed”).
Here, the AG’s special action petition is not limited to “pure questions of law.”
As shown above in the Statement of Facts, the AG’s 11-page Statement of Facts
(like the 100-paragraph trial court complaint that preceded it) is replete with
misleading and contested factual assertions. Indeed, the AG’s suggestion (at 5, 27)
that this Court remand this special action to the trial court so that it can be “factually
developed” shines a spotlight on the many factual disputes raised by the AG’s
petition. It matters not at all that the AG’s factual assertions have not yet been
resolved in the AG’s identical suit (because the AG’s claims were dismissed with
prejudice on legal grounds). On its face, the AG’s petition presents factual questions
and is not limited to “pure questions of law.”
C. Special action jurisdiction is not proper because the AG’s petition
does not require an immediate resolution.
Original special action jurisdiction in this Court is only appropriate when the

case “requires an immediate and final resolution.” Dobson, 233 Ariz. at 121 ¶ 8,
309 P.3d at 1291; cf. Ariz. Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347,
351 ¶ 14, 275 P.3d 1267, 1271 (2012) (exercising its “discretion to accept special
action jurisdiction because the legal issues raised required prompt resolution”).

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The AG’s own actions demonstrate, beyond peradventure, that the AG’s
special action claims do not require an “immediate” resolution. The AG chose to

(1) file an identical suit in the trial court 17 months ago, (2) appeal the trial court’s
decision dismissing his suit seven months ago, and (3) fully brief all the relevant
arguments in the court of appeals. Apparently dissatisfied with the record in his
identical suit, the AG brought this original special action petition in this Court. But
he never argued—in the trial court, in the court of appeals, or in his special action
petition here—that these issues require an “immediate” resolution. To the contrary,
the AG suggested (at 5, 27) that this Court remand this special action to a trial court
so that it can be “factually developed.” Because neither the AG nor the Board has
ever argued that these matters present legal issues that must be immediately
resolved, this Court should decline to exercise jurisdiction over the AG’s special
action petition.
D. Special action jurisdiction is not proper because the AG lacks the
statutory authority to bring this special action.
For nearly 60 years, it has been settled law in Arizona that while “there are
occasions on which the Attorney General may initiate proceedings on behalf of the
State, and may even appear in opposition to a particular State agency, . . . these

instances are dependent upon specific statutory grants of power.” McFate, 87 Ariz.
at 144, 348 P.2d at 915 (emphasis added). “In Arizona, the Attorney General has no
common law powers; whatever powers he possesses must be found in the Arizona
Constitution or the Arizona statutes.” State ex rel. Woods v. Block, 189 Ariz. 269,
272, 942 P.2d 428, 431 (1997) (citation omitted).

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Here, no statute authorizes the AG’s original special action petition against
his client, the Board. The AG argues (at 3, 7) that A.R.S. § 41-193(A)(1), as

interpreted in Morrison, authorizes him to initiate this special action in this Court.
But neither A.R.S. § 41-193(A)(1) nor Morrison support the AG’s position. Section
41-193(A)(1) states that the department of law shall “[p]rosecute and defend in the
supreme court all proceedings in which the state or an officer thereof in his official
capacity is a party.” The statutory language forecloses the AG’s argument, and has
been interpreted accordingly by this Court.
First, A.R.S. § 41-193(A)(1) only authorizes the AG to “prosecute and
defend.” As McFate explained when it interpreted the identical phrase in A.R.S.
§ 41-193(A)(2), the power to “‘prosecute’ may in some situations, especially with
reference to criminal actions, include the power to commence a proceeding, but . . .
that is not the meaning of ‘prosecute’ in the context of” A.R.S. § 41-193(A)(2). 87
Ariz. at 145–46, 348 P.2d at 916. McFate recognized that the power to “prosecute”
does not authorize the AG to commence a civil suit such as this. See id. This Court
has repeatedly reiterated this same distinction. See, e.g., Forbach v. Steinfeld, 34
Ariz. 519, 527–28, 273 P. 6, 9 (1928) (noting that “commence” and “prosecute” are
not synonymous; rather, “commence” means initiate and “prosecute” means that the
case “must be carried on with reasonable diligence”); W.T. Rawleigh Co. v. Spencer,
58 Ariz. 182, 185–86, 118 P.2d 674, 675–76 (1941) (same). Because this Court

“construe[s] the same words with only one meaning,” State ex rel. Brnovich v.
Maricopa Cty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 542 ¶ 12, 416 P.3d 803, 806
(2018), this Court should extend McFate’s interpretation of “prosecute” in A.R.S. §

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41-193(A)(2) to A.R.S. § 41-193(A)(1). See State ex rel. Indus. Comm’n v. Pressley,
74 Ariz. 412, 421, 250 P.2d 992, 998 (1952) (“Undoubtedly, there is a natural

presumption that identical words used in different parts of the same [statute] are
intended to have the same meaning.”).
Further, McFate’s interpretation of “prosecute” in A.R.S. § 41-193(A)(2)
should be extended to A.R.S. § 41-193(A)(1) because this Court’s “interpretation
becomes part of the statute.” Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 17, 69
P.3d 23, 27 (2003). The Legislature amended A.R.S. § 41-193 twice after McFate
was decided, in 1976 and 1995. See 1995 Ariz. Sess. Laws, ch. 94, § 2 (1st Reg.
Sess.); 1976 Ariz. Sess. Laws, ch. 94, § 1 (2d Reg. Sess.). Neither amendment
affected McFate’s reading. This Court should therefore presume that McFate
correctly interpreted the Legislature’s intent. See Galloway, 205 Ariz. at 256 ¶ 17,
69 P.3d at 27 (noting that, when the Legislature “amends a statute after it has been
judicially construed, but does not modify the statute in a manner that changes the
court’s interpretation,” this Court “presume[s] the legislature approved of the court’s
construction and intended that it remain a part of the statute”). In fact, as recently
as 2018, the Legislature considered but did not approve an amendment to A.R.S.
§ 41-193(A)(1) and (2) that would have authorized the AG to “initiate” as well as
“prosecute and defend” litigation. See Ariz. House Bill 2204,
https://www.azleg.gov/legtext/53leg/2r/bills/hb2204p.htm (last visited Feb. 27,

2019). This Court should not interpret A.R.S. § 41-193 to give the AG authority the
Legislature has declined to provide.

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Finally, if “prosecute” and “institute” mean the same thing, as the AG implies
(at 7), the Legislature would have had no reason to enumerate both powers in various

statutes. See, e.g., A.R.S. § 3-633 (“[T]he attorney general . . . shall institute and
prosecute all actions arising under this article.”) (emphasis added); A.R.S. § 3-734
(“The attorney general . . . shall institute and prosecute actions arising under this
article.”) (emphasis added); A.R.S. § 23-929 (“Upon request of the commission the
attorney general, . . . shall institute and prosecute the necessary actions or
proceedings for the enforcement of the provisions of this chapter.”) (emphasis
added); A.R.S. § 42-14257(2) (“The tax imposed by this article . . . [m]ay be
collected by an action instituted and prosecuted by the attorney general on the
director’s request.”) (emphasis added). The AG’s interpretation of A.R.S. § 41-
193(A)(1) would render parts of these, and other, statutes meaningless—an absurd
result that the Legislature could not have intended. See Nicaise v. Sundaram, 245
Ariz. 566, 568, 432 P.3d 925, 927 ¶ 11 (2019) (“A cardinal principle of statutory
interpretation is to give meaning, if possible, to every word and provision so that no
word or provision is rendered superfluous.”); Champlin v. Sargeant In & For Cty.
of Maricopa, 192 Ariz. 371, 374 ¶ 16, 965 P.2d 763, 766 (1998) (“Interpreting
statutory language requires that we give meaning to each word, phrase, clause, and
sentence within a statute so that no part will be superfluous, void, contradictory, or
insignificant.”).

Second, by its terms, A.R.S. § 41-193(A)(1) only authorizes the AG to


represent the State or an officer in this Court when the State or an officer
already “is a party.” McFate correctly interpreted A.R.S. § 41-193(A)(2) in this

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way, observing that the identical phrase in that statute “presupposes a properly
instituted proceeding” and does not authorize the AG “to initiate an original

proceeding.” 87 Ariz. at 145, 348 P.2d at 916. This Court should “construe the
same words with only one meaning” and extend this common-sense interpretation
to A.R.S. § 41-193(A)(1). See State ex rel. Brnovich, 243 Ariz. at 542 ¶ 12, 416
P.3d at 806; see also Ratzlaf v. United States, 510 U.S. 135, 143 (1994) (“A term
appearing in several places in a statutory text is generally read the same way each
time it appears.”).
The AG suggests (at 3, 7) that Morrison supports his expansive view of A.R.S.
§ 41-193(A)(1) by relying on one self-serving soundbite—that the AG “may, like
the Governor, go to the courts for protection of the rights of the people.” 80 Ariz. at
332, 297 P.2d at 628. But an actual reading of Morrison undermines the AG’s
expansive view of his own authority and instead supports interpreting A.R.S. § 41-
193(A)(1) in line with the statutory text: the AG is only authorized to “prosecute,”
not “institute,” cases in this Court when the State already “is a party.”
In Morrison, the Superintendent of the State Department of Liquor Licenses
and Control denied Mary Lou Brown’s application for a liquor license because the
license would have exceeded the statutory quota. 80 Ariz. at 329, 297 P.2d at 625.
Brown appealed that determination to the superior court, and the superior court
reversed the Superintendent. Id. When the Superintendent failed to apply for a writ

of certiorari to this Court to challenge the trial court’s decision, the AG applied for
the writ. Id. In upholding the AG’s authority to seek review of the trial court’s
decision in this Court under A.R.S. § 41-193(A)(1)’s predecessor, Morrison

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emphasized that “[t]he State was [already] a party to that action”—namely, the
action instituted by Brown in the trial court against a state agency. Id. at 330, 297

P.2d at 626. This Court’s later decisions also interpret Morrison as only authorizing
the AG to “prosecute” actions in this Court when the State already is a party. See
McFate, 87 Ariz. at 147, 348 P.2d at 917 (observing that, in Morrison, “the State
was the real party in interest in the proceeding”) (emphasis added); Santa Rita
Mining Co. v. Dep’t of Prop. Valuation, 111 Ariz. 368, 369, 530 P.2d 360, 361
(1975) (describing Morrison as holding that the AG has the right “to appeal by way
of a writ of certiorari from a decision of the Superior Court involving a state
department when the department head was silent as to a desire to appeal”) (emphasis
added). Nothing in Morrison or any other case authorizes the AG to bring an original
special action here.
Finally, the AG’s interpretation of Morrison should be rejected because it
would lead to an absurd and unprecedented expansion of the AG’s authority to
initiate original special actions in this Court. McFate emphasized that the AG’s
authority to initiate litigation is “dependent upon specific statutory grants of power.”
87 Ariz. at 144, 348 P.2d at 915 (emphasis added). But under the AG’s reading of
Morrison, he need only allege that he is acting to “protect[] . . . the rights of the
people” to initiate an original special action in this Court. There is literally no
precedent for such an unrestrained expansion of the AG’s authority, and it would

lead to the absurd result that the AG has the authority to initiate original special
actions in this Court even when he lacks the authority to bring the same action in

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superior court. Surely, that is not the result that either the Legislature intended in
enacting A.R.S. § 41-193(A)(1) or that this Court intended in Morrison.
ARGUMENT
This Court should decline to accept jurisdiction over the AG’s original special
action petition for the reasons discussed in the immediately preceding section. But
if the Court accepts jurisdiction, then it should deny the relief requested for three
reasons. First, the AG’s special action claims are claim barred because the trial court
dismissed his identical suit with prejudice ten months ago. Second, the AG’s
constitutional claims charge the Board with violating the same “nearly free as

possible” clause that this Court held non-justiciable in Kromko. Third, the Board is
immune from suit for the manner it sets tuition.
A. The AG’s special action claims are barred by the trial court’s
dismissal with prejudice of his identical suit.
The trial court dismissed the AG’s identical suit with prejudice ten months
ago. On appeal, the parties fully briefed whether the trial court’s dismissal with
prejudice was proper. Rather than exercise his adequate appellate remedy, however,

the AG now asks for a do-over in this Court, arguing (at 6) that the trial court’s
dismissal with prejudice was improper and asking this Court to vacate the dismissal.
The trial court’s dismissal with prejudice was proper because no additional

amendment could cure the complaint’s defects. See, e.g., Wigglesworth v. Mauldin,
195 Ariz. 432, 439 ¶ 27, 990 P.2d 26, 33 (App. 1999) (affirming dismissal with
prejudice where the court could not “imagine that an amendment could cure the legal

defects of [the] complaint”). The federal authority cited by the AG (at 6) is to the

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same effect. See Univ. of Pittsburgh v. Varian Med. Sys., Inc., 569 F.3d 1328, 1332
(Fed. Cir. 2009) (“On occasion, . . . dismissal with prejudice is appropriate,

especially where it is plainly unlikely that the plaintiff will be able to cure the
standing problem.”) (quoting Fieldturf, Inc. v. Sw. Recreational Indus., 357 F.3d
1266, 1269 (Fed. Cir. 2004)); see also Raniere v. Microsoft Corp., 887 F.3d 1298,
1307 n.2 (Fed. Cir. 2018) (same).
This principle applies with full force here. The AG already has tried and failed
to assert a statutory basis for his suit on three separate occasions. In the trial court,
the AG cited one (and only one) statutory basis for his suit—A.R.S. § 35-212, a
statute that authorizes him to “bring an action . . . to . . . [e]njoin the illegal payment
of public monies” or to “[r]ecover illegally paid public monies.” The trial court
rightly held that this statute did not empower the AG to bring his suit because the
AG never identified a “payment” that he sought to enjoin or recover. At the court
of appeals, the AG still did not identify any such payment.
Instead, the AG asked the court of appeals for a do-over and raised the brand-
new argument that A.R.S. § 41-193(A)(2) authorized his suit and any other suit he
saw fit to initiate. The Board responded, arguing that the AG waived the argument
that A.R.S. § 41-193(A)(2) authorized his suit, but in any event, that A.R.S. § 41-
193(A)(2) did not and could not have authorized his suit. Those fully briefed
arguments, among others, are currently pending in the court of appeals.

Grasping at straws, the AG now asserts—for the first time over a year after he
chose to initiate his suit in the trial court—that a third statute authorizes him to bring
this identical suit as an original special action in this Court. For the reasons set forth

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above, the AG is flat wrong. A.R.S. § 41-193(A)(1) did not and could not have
authorized this suit. After trying and failing three times to assert a statutory basis

for this suit, the AG nevertheless argues (at 6) the trial court’s dismissal with
prejudice was improper. But as these three rounds of arguments amply demonstrate,
the defects in the AG’s complaint are incurable—no statute authorized the AG to
bring this suit.
Furthermore, Arizona Rule of Civil Procedure 41(b) provides that “any
dismissal not under this rule [related to voluntary dismissal or dismissal for a
plaintiff’s failure to prosecute]—except for one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19—operates as an adjudication on the
merits.” As this Court has observed, Rule 41(b) sets forth a “general rule that all
involuntary dismissals are with prejudice unless otherwise specified.” Phillips v.
Ariz. Bd. of Regents, 123 Ariz. 596, 598, 601 P.2d 596, 598 (1979). The only
exceptions to this rule are dismissals “for lack of jurisdiction, improper venue, or
failure to join a party.” Ariz. R. Civ. P. 41(b). The trial court’s dismissal did not
fall within one of those limited categories, and therefore, dismissal with prejudice
was warranted.
Claim preclusion bars the AG from bringing a suit in this Court that is
identical to the one the trial court dismissed with prejudice ten months ago. Contrary
to the AG’s suggestion (at 6) that Arizona courts apply a narrow “same evidence”

test to determine the claim preclusive effect of a prior dismissal, this Court applies
the broad “same transaction” test set forth in the Restatement (Second) of
Judgments. See Crosby-Garbotz v. Fell In & For Cty. of Pima, No. CR-18-0050-

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PR, 2019 WL 438194, at *4 ¶ 19 (2019) (“Under claim preclusion, a final judgment
may preclude later litigation of other causes of action based on the transaction or

series of transactions out of which an action arises, considering ‘whether the facts
are related in time, space, origin, or motivation.’”) (quoting Restatement (Second)
of Judgments § 24 (Am. Law Inst. 1982)); cf. Phillips v. O’Neil, 243 Ariz. 299, 304
¶¶ 23–24, 407 P.3d 71, 76 (2017) (applying the “same transaction” test). Under that
test, “the focus is on whether multiple claims arise out of a ‘common nucleus of
operative facts.’” Phillips, 243 Ariz. at 304 ¶ 23, 407 P.3d at 76 (quoting In re the
Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 212
Ariz. 64, 71 ¶¶ 20–21, 127 P.3d 882, 889 (2006)).
Grasping for an argument, the AG asserts (at 6–7) that his special action
claims are not claim barred by the dismissal with prejudice of his identical suit ten
months ago because “another school year has come” since he filed his first suit and
the Board “revised its policies in November 2018 regarding tuition and fees.” Both
arguments fall flat. The AG’s special action claims not only share a “common
nucleus of operative facts” with his claims in the trial court, they share exactly the
same facts.
The fact that “another school year has come” is irrelevant to the AG’s claims.
Unlike the students’ claims in Kromko that the specific amount of state university
tuition charged in one year was too high, see 216 Ariz. at 191 ¶ 1, 165 P.3d at 169,

the AG’s claims in his identical suit and in this special action both attack the Board’s
policy decisions regarding the factors it takes into account in setting tuition generally
(at 20), and also specifically for part-time students (at 20–21), and online students

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(at 21). The AG further attacks (at 21) the Board’s judgment that athletics,
recreation, technology, and health care are part of a complete higher education.

These claims attacking the Board’s policy determinations are not school year
specific and are not affected by the fact that “another school year has come.”
Further, the Board’s November 2018 revisions to its tuition policies in no way affect
the AG’s allegations in this special action or in his identical suit. The Board took
the same factors into account in setting tuition when the AG brought his identical
suit 17 months ago that it takes into account now. The AG’s special action petition
is barred by claim preclusion because his identical suit, which was dismissed with
prejudice ten months ago, was based on the same facts and the same policies, and,
indeed, the AG raised the same claims in both actions.
B. The AG’s claims under the “nearly free as possible” clause present
non-justiciable political questions.
Fifteen years ago, the AG—representing the Board—argued in Kromko that
claims under the “nearly free as possible” clause in article XI, section 6 of the

Arizona Constitution raise non-justiciable political questions. The clause, he argued,


is “not susceptible to judicially discoverable and manageable standards for
resolution.” Answering Br. at 18, Kromko v. Ariz. Bd. of Regents, 213 Ariz. 607,

146 P.3d 1016 (App. 2006) (No. 1 CA-CV 04-0250); see also Ariz. Bd. of Regents’
Suppl. Br. at 8, Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 165 P.3d 168 (2007)
(No. CV-07-0018-PR) (arguing that “the standard imposed by the As Nearly Free
As Possible Clause is not amenable to judicial application and resolution”). This
Court agreed and affirmed dismissal of the students’ complaint, holding that claims

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under the “nearly free as possible” clause present non-justiciable political questions.
Kromko, 216 Ariz. at 195 ¶¶ 25–26, 165 P.3d at 173.

Now, the AG is suing his client, the Board, for a second time for violating the
same “nearly free as possible” clause held non-justiciable in Kromko. Putting the
ethical implications of the AG’s conduct to the side,10 his constitutional claims are

as non-justiciable today as they were in Kromko, and should therefore be dismissed.


Recognizing that his original special action petition is identical to the suit that
the trial court dismissed with prejudice ten months ago and that is fully briefed and
currently pending in the court of appeals, the AG merely incorporates (at 5) his
briefing in that case relating to the non-justiciability of his constitutional claims.
There, the AG argued (Op. Br. at 46–47) that Kromko does not apply because, in
that case, the plaintiffs were challenging the precise level of tuition approved by the
Board for a specific year, whereas the AG’s complaint and special action challenge
the constitutionality of the Board’s tuition-setting policies. But that is a distinction

without a difference. Kromko’s rationale was that the “nearly free as possible”
clause did not present a standard that courts could apply. This Court hammered that
point time and again:

10
The AG’s side-switching distinguishes this case from those rare occasions
where the AG may appear in opposition to a state agency. At the very least, the
AG’s decision to sue his former (and current) client on substantially similar claims
raises significant questions under Ethical Rule 1.9(a), which prohibits a “lawyer who
has formerly represented a client in a matter” from representing “another person in
. . . a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client.”

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• The issue of whether instruction “is as nearly free as possible is . . . a
nonjusticiable political question.” 216 Ariz. at 194 ¶ 21, 165 P.3d at 172.

• “We can conceive of no judicially discoverable and manageable standards—


and the students have suggested none—by which we could decide such issues,
either individually or in the aggregate.” Id.

• “[I]t is impossible for courts to determine by [an] objective standard whether


tuition is as nearly free as possible.” Id. at 195 ¶ 24, 165 P.3d at 173.

• “[T]here is no North Star to guide a court” in reviewing claims under the


clause. Id. at 194 ¶ 21, 165 P.3d at 172.
This rationale requires dismissal of any and all claims under article XI, section 6—
not just those that challenge specific tuition levels.11

The political question concerns are arguably even more starkly presented in
the AG’s identical suit and in his special action petition than in Kromko. In Kromko,
this Court feared that, to reach the merits of the plaintiffs’ claim that the specific
amount of tuition charged in one year was too high, it would need to indirectly
second-guess the Board’s “policy decisions about the quality of the state universities
and the level of instruction to be offered.” Id. at 194 ¶ 18, 165 P.3d at 172. Here,

the AG’s claims in his identical suit and in his special action petition raise a direct
and frontal attack on those very policy decisions. The AG attacks the Board’s policy

11
Kromko, of course, did not purport to decide claims that were not before the
Court, including any claim challenging a specific Board policy. See 216 Ariz. at 192
¶ 9, 165 P.3d at 170 (“We . . . have no occasion today to decide whether [other]
allegations [against the Board] would present justiciable questions.” Yet that
observation was simply a matter of sound judicial restraint. See Stonecreek Bldg.
Co. v. Shure, 216 Ariz. 36, 37 ¶ 5 n.3, 162 P.3d 675, 676 (App. 2007) (noting that
appellate courts “do[] not give advisory opinions or decide issues [they are] not
required to reach in order to dispose of an appeal”). Such restraint does not turn a
non-justiciable clause of the Constitution into a judicially reviewable one.

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decisions regarding the factors it takes into account in setting tuition generally (at
20; Compl. ¶¶ 53–66), and also specifically for part-time students (at 20–21; Compl.

¶¶ 67–72), and online students (at 21; Compl. ¶¶ 73–86). The AG further attacks (at
21; Compl. ¶¶ 87–91) the Board’s pedagogical judgment that athletics, recreation,
technology, and health care are part of a complete higher education. 12 But as

Kromko explains, “there is no North Star to guide a court” in reviewing these


decisions. 216 Ariz. at 194 ¶ 21, 165 P.3d at 172. For the Court to do so would be
to “substitut[e] [its] subjective judgment of what is reasonable under all the
circumstances for that of the Board and Legislature.” Id.
Unable to withstand Kromko’s justiciability analysis, the AG in his identical
suit then attacked that analysis. In particular, the AG asked (Op. Br. at 47–50) that
Kromko be “reconsidered” insofar as it examined whether a case presents “judicially
discoverable and manageable standards.” Id. at 193–94 ¶¶ 15–21, 165 P.3d at 171–
72. That inquiry, argued the AG (Op. Br. at 48), “does not comport with the

separation of powers established by the Arizona Constitution.”


The AG’s attempt to rewrite the political question test would throw stare
decisis to the winds. He has never suggested—in this special action or in his

identical suit—that Kromko’s adherence to the test is inconsistent with any judicial
decision, anywhere, nor does he offer any evidence that the test has led to any

12
The citations to the AG’s complaint in this paragraph are to the amended
complaint that the AG filed in the trial court (No. CV-2017-012115). As noted
above, the trial court dismissed that complaint with prejudice ten months ago,
holding that the AG lacked the statutory authority to bring his suit. The AG
appealed, and that appeal is fully briefed and currently pending in the court of
appeals (No. 1 CA-CV 18-0420).

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jurisprudential harm. To the contrary, the presence or absence of judicially
manageable standards has been fundamental to justiciability considerations at least

since Baker v. Carr, 369 U.S. 186 (1962) was decided over a half century ago.
There, the United States Supreme Court recognized that a controversy is
nonjusticiable—i.e., involves a political question—when there is “a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for
resolving it.” Id. at 217 (emphasis added).
As Kromko explained, Baker’s political question test “flows from the basic
principle of separation of powers and recognizes that some decisions are entrusted
under the federal constitution to branches of government other than the judiciary.”
216 Ariz. at 192 ¶ 12, 165 P.3d at 170 (citing Baker, 369 U.S. at 210–11). Arizona
courts consistently follow the same test—including its focus on judicially
manageable standards—because they owe fidelity, under article III of the Arizona
Constitution, to the same principle of separation of powers. See, e.g., State v.
Maestas, 244 Ariz. 9, 11–12 ¶¶ 7–12, 417 P.3d 774, 776–77 (2018) (“Flowing from
‘the basic principle of separation of powers,’ a non-justiciable political question is
presented when ‘there is a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it.’” (quoting Kromko, 216 Ariz. at 192 ¶¶ 11–

12, 165 P.3d at 170)); Burns, 222 Ariz. at 238–39 ¶¶ 16–22, 213 P.3d at 675–76
(following the same test); Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482,
485 ¶ 7, 143 P.3d 1023, 1026 (2006) (following the same test); Fogliano v. Brain ex

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rel. Cty. of Maricopa, 229 Ariz. 12, 20 ¶ 23, 270 P.3d 839, 847 (App. 2011)
(following the same test). This unbroken line of precedent recognizes that, rather

than disserving separation of powers principles, as the AG suggests, the test followed
by Kromko enforces that separation. 13
Moreover, the AG has never professed a quarrel with the aspect of the political

question test that examines whether there has been a “textually demonstrable
constitutional commitment of the issue” to a political branch. Yet, that inquiry
cannot be divorced from a search for judicially manageable standards. The very
absence of such standards signals that the issue has been committed to a political
branch. As the United States Supreme Court observed, “the concept of a textual
commitment to a coordinate political department is not completely separate from the

concept of a lack of judicially discoverable and manageable standards for resolving


it; the lack of judicially manageable standards may strengthen the conclusion that

13
In fact, the AG recently advocated in favor of the same political question
test followed in Kromko. In State v. Maestas, he explicitly relied on the “judicially
discoverable and manageable standards” prong in arguing that whether the
Legislature could criminalize the possession of medical marijuana on public
university campuses consistent with the Voter Protection Act is a non-justiciable
political question. See Appellee’s Suppl. Br. at 8–9, State v. Maestas, 244 Ariz. 9,
417 P.3d 774 (2018) (No. CR-17-0193-PR) (“Given the political nature of federal
education enforcement policies, there are no judicially discoverable and manageable
standards for determining whether legalizing medical marijuana on Arizona’s public
university campuses will ultimately lead to a loss of federal funding for those
schools.”); see also State of Arizona’s Pet. for Review at 8–9, State v. Maestas, 244
Ariz. 9, 417 P.3d 774 (2018) (No. CR-17-0193-PR) (citing Kromko and arguing that
“whether Arizona’s legalization of medical marijuana on public college campuses
places federal funds at risk is a political question this Court is ill-equipped to second
guess”).

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there is a textually demonstrable commitment to a coordinate branch.” Nixon v.
United States, 506 U.S. 224, 228–29 (1993). This Court has recognized the same

point. See Ariz. Indep. Redistricting Comm’n, 229 Ariz. at 351 ¶ 18, 275 P.3d at
1271 (stating that “the two aspects of the test are interdependent”).
Kromko, too, recognized this interdependence. Its analysis was not confined
to the search for judicially manageable standards, but rather emphasized that the
policy questions involved in setting university tuition “are constitutionally entrusted
to branches of government other than the judiciary.” 216 Ariz. at 193 ¶ 13, 193–94
¶¶ 15–21, 165 P.3d at 171–72. As this Court explained:
[A] court cannot assess whether the cost of tuition is as nearly free as
possible in the absence of an initial policy determination of a kind
clearly reserved to the Legislature and the Board. . . . Because the
universities’ annual operating budgets are established by combining
general fund appropriations with tuition, registration fees, and other
revenues, . . . it is impossible to determine whether tuition is as nearly
free as possible without also confronting two inextricably related
issues. First, a court would have to ascertain whether the Legislature
appropriated sufficient money from the general fund to allow for the
proper operation of the universities at a lower level of tuition. . . .
Second, a court would have to determine whether, in light of the amount
actually appropriated by the Legislature, [the Board] adopted too
expensive a budget or, in other words, whether the universities should
offer educational services of a lesser number or quality than those
chosen by the Board.
Id. at 194 ¶ 20, 165 P.3d at 172 (emphasis added). The AG has never attempted to

suggest that Kromko was off-base in holding that these issues are committed to the

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political branches. 14 Precisely the same is true for the issues he raised in his identical
suit and raises in his special action here.
C. The AG’s claims are barred by the Board’s legislative immunity.
As the AG acknowledges (at 21) and likewise acknowledged in his identical
suit (Compl. at 2), his claims attack the Board’s “tuition-setting policy.” And as
with his arguments relating to the non-justiciability of his claims, the AG again
merely incorporates (at 5) his briefing in his identical suit relating to the Board’s
legislative immunity rather than raise any new or different arguments here. But, in
setting policies, the Board has acted pursuant to authority delegated to it by the

Legislature. As such, it is entitled to the same immunity from suit that the
Legislature would have enjoyed had it been sued for establishing the same policy.
The common law legislative immunity doctrine “bars criminal and civil
liability for legislative acts.” State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 122
¶ 74, 290 P.3d 1226, 1245 (App. 2012). This immunity ensures that “legislative
function[s] may be performed independently without fear of outside interference.”

14
The AG curiously chooses to attack (at 21) the Board’s “tuition-setting
policy” as running counter to the Arizona Constitution, but fails to focus any
attention on the Legislature’s constitutional responsibility to fund Arizona’s public
universities. See Ariz. Const. art. XI, § 10 (providing that, in addition to using the
proceeds from selling or renting lands that the federal government gave the State at
statehood “for the maintenance of the respective state educational institutions,” the
Legislature “shall make such appropriations, to be met by taxation, as shall insure
the proper maintenance of all state educational institutions, and shall make such
special appropriations as shall provide for their development and improvement”).
As the Board’s charts demonstrate, Arizona has experienced the single largest
decrease in this country in state support on a per capita basis over the last ten years.
See Appendix, Charts G–H.

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Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731 (1980); accord
Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 137 ¶ 17, 75 P.3d 1088,

1095 (App. 2003) (noting that the immunity “support[s] the rights of the people, by
enabling their representatives to execute the functions of their office without fear of
prosecutions, civil or criminal” (citation omitted)).
Arizona courts hold that an “act is legislative in nature when it bears the
‘hallmarks of traditional legislation’ by reflecting a discretionary, policymaking
decision that may have prospective implications, as distinguished from an
application of existing policies.” Fields, 206 Ariz. at 138 ¶ 21, 75 P.3d at 1096
(quoting Bogan v. Scott-Harris, 523 U.S. 44, 55–56 (1998)). Additionally, “a
legislative act occurs in ‘a field where legislators traditionally have power to act.’”
Id. (quoting Bogan, 523 U.S. at 56).
Legislative immunity extends beyond the legislative branch and may extend
to state entities such as the Board. Arizona courts use “a ‘functional’ approach to
determine who may assert the legislative privilege, which is not dependent on the
manner of selection for office.” Id. at 138 ¶ 20, 75 P.3d at 1096. So, a “public
official” or entity “who acts in a legislative capacity may assert the legislative
privilege regardless of his or her particular location within government.” Id.; see
also id. (applying the immunity to a three-member commission). Put simply, “if an
entity performs a legislative function, courts should regard that entity as a legislative

body,” entitled to legislative immunity. Ariz. Minority Coal. for Fair Redistricting
v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 594 ¶ 18, 208 P.3d 676, 683
(2009); see also Schmidt v. Contra Costa Cty., 693 F.3d 1122, 1132 (9th Cir. 2012)

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(noting that when the Legislature delegates its legislative authority to another
governmental entity, that entity is entitled to legislative immunity in exercising its

“delegated legislative powers”). Here, the Board is exercising such a function,


having been delegated the authority to set “tuitions and fees” by the Legislature. See
A.R.S. § 15-1626(A)(5).
In his identical suit, the AG nonetheless argued (Op. Br. at 51) that legislative
immunity does not apply here because it “does not immunize [the Board] from
judicial scrutiny for implementation of these policies and procedures.” (emphasis
omitted). He then cited numerous cases—none of which even discuss legislative
immunity—in which suits were brought challenging the implementation of certain
expenditures. 15 Notably, one of those cases, Carpio v. Tucson High School District

No. 1 of Pima County, directly refutes the AG’s own argument. In that case, this
Court pointedly observed: “Unless the courts are to take over legislative functions
and to decree that all children in all grades are to have free textbooks, the judgment
of the Legislature should control.” 111 Ariz. 127, 130, 524 P.2d 948, 951 (1974)

15
See Gallardo v. State, 236 Ariz. 84, 336 P.3d 717 (2014) (suing election
officials to enjoin an election that was the result of a statute); Cave Creek Unified
Sch. Dist. v. Ducey, 233 Ariz. 1, 308 P.3d 1152 (2013) (suing the state treasurer to
enjoin the enforcement of the Legislature’s budget); Dobson v. State ex rel., Comm’n
on Appellate Ct. Appointments, 233 Ariz. 119, 309 P.3d 1289 (2013) (suing the
Appellate Court Commission to enjoin the enforcement of a statute); Ariz. Minority
Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587,
208 P.3d 676 (2009) (suing the Arizona Redistricting Commission for failing to
follow procedural requirements in the Arizona Constitution); League of Ariz. Cities
& Towns v. Martin, 219 Ariz. 556, 201 P.3d 517 (2009) (suing the state treasurer
and governor to enjoin the enforcement of a statutory school financing system);
Arnold v. Ariz. Dep’t of Health Servs., 160 Ariz. 593, 775 P.2d 521 (1989) (suing
the state and county health care systems for failing to comply with statutes).

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(citation omitted). So too here. Neither the AG’s claims in his identical suit nor in
his special action challenge the implementation of any policy. Rather, the AG

challenges the Board’s policy-making itself, a policy-making role that the Board fills
by virtue of it having been delegated by the Legislature. See Kromko, 216 Ariz. at
191 ¶ 3, 165 P.3d at 169 (“The Legislature has delegated to the Board the power to
‘[f]ix tuitions and fees to be charged’ at the state universities.”) (alteration in
original) (quoting A.R.S. § 15-1626(A)(5))). Following this mandate, in setting
tuition the Board makes “a series of policy decisions about the quality of the state
universities and the level of instruction to be offered.” Id. at 194 ¶ 18, 165 P.3d at
172. The Board does not “merely implement an established . . . policy,” but instead
formulates policies that prospectively dictate budgets and tuition. See Fields, 206
Ariz. at 138 ¶¶ 21–22, 75 P.3d at 1096; see also id. at 138–39 ¶¶ 20–24, 75 P.3d at
1096–97 (holding that the enactment of a redistricting plan was legislative when,
among other things, the plan had “prospective application”).
The fact that the Board sets tuition as part of a budget-making process further
confirms that tuition-setting is legislative in nature. The Board is required to adopt
annual operating budgets for state universities “equal to the sum of appropriated
general fund monies and the amount of tuition and fees approved by the board and
allocated to each university operating budget.” A.R.S. § 15-1626(A)(13). In other
words, setting the cost of tuition is integral to the Board’s determination of the

budgets for the state universities. See Kromko, 216 Ariz. at 193–94 ¶¶ 17–18, 165
P.3d at 171–72 (discussing the role of tuition in annual operating budgets). Budget-
making is indisputably a “quintessential legislative function,” reflecting the

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“ordering of policy priorities in the face of limited financial resources.” Rateree v.
Rockett, 852 F.2d 946, 950 (7th Cir. 1988) (quoting Rateree v. Rockett, 630 F. Supp.

763, 771 (N.D. Ill. 1986)); see also Kensington Volunteer Fire Dep’t, Inc. v.
Montgomery Cty., 684 F.3d 462, 471 (4th Cir. 2012) (“[W]e have no trouble
concluding that enacting a budget is a legislative act.”). This is true even when the
budget is set by an executive. See Bogan, 523 U.S. at 55 (noting that the mayor’s
introduction of a budget was “legislative” in nature). Thus, the legislative immunity
doctrine bars counts I through V of the AG’s complaint in the AG’s identical suit
and likewise bars the AG’s special action claims here.
ARCAP 21(A) ATTORNEY’S FEES NOTICE
The Board requests reasonable attorney fees as the successful party in this
action under A.R.S. § 12-348.01, and that the AG’s similar fee request be denied.
CONCLUSION
This Court should decline to accept jurisdiction over the AG’s original special
action petition because the AG has “an equally plain, speedy, and adequate remedy
by appeal”—the appeal that is fully briefed and currently pending in the court of
appeals—and because the AG lacks the statutory authority to bring this special
action. Further, and in any event, the AG’s special action petition does not present

“pure questions of law,” but is instead based on a host of contested facts, and does
not require an “immediate” resolution in light of the AG’s decision to file an
identical suit in the trial court 17 months ago. For all these reasons, this Court should

put an end to the AG’s procedural gamesmanship and decline to accept jurisdiction.

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Alternatively, if this Court accepts jurisdiction, then it should deny the AG
relief because all his claims are claim barred by the trial court’s dismissal with

prejudice ten months ago of his earlier, identical suit; his constitutional claims
present non-justiciable political questions; and the Board is immune from suit for
the manner that it sets tuition.

February 27, 2019 Respectfully submitted,


PERKINS COIE LLP

By:/s/ Paul F. Eckstein


Paul F. Eckstein
Joel W. Nomkin
Shane R. Swindle
Thomas D. Ryerson
Austin C. Yost
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000

Attorneys for Respondent-Appellee


Arizona Board of Regents

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