NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, ex rel. MARK BRNOVICH, ATTORNEY GENERAL, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, Defendant/Appellee. No. 1 CA-CV 18-0420 FILED 8-20-2019 Appeal from the Superior Court in Maricopa County No. CV2017-012115 The Honorable Connie Contes, Judge AFFIRMED COUNSEL Arizona Attorney General's Office, Phoenix By Brunn W. Roysden, III; Oramel H. Skinner; Evan G. Daniels, Drew C. Ensign, Robert J. Makar, Dustin D. Romney, Katherine H. Jessen Counsel for Plaintiff/Appellant Perkins Coie, LLP, Phoenix By Paul F. Eckstein, Joel W. Nomkin, Shane R. Swindle, Thomas D. Ryerson, Austin Yost Counsel for Defendant/Appellee STATE v. AZ REGENTS Decision of the Court MEMORANDUM DECISION Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined. M O R S E, Judge: ¶1 The State of Arizona appeals the superior court's May 22, 2018 judgment dismissing the State's complaint with prejudice. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In September 2017, the State filed a complaint against the Arizona Board of Regents ("ABOR") for declaratory, injunctive, and special action relief. The complaint asserted five counts of violations of Article 11, Section 6 of the Arizona Constitution ("Counts I-V"), and one count of violation of Arizona Revised Statutes ("A.R.S.") sections 35-143 and -212 ("Count VI"). Specifically, Counts I-V alleged that ABOR's tuition-setting policies and practices violated the Arizona Constitution's requirement that "the instruction furnished [at the university and all other state educational institutions] . . . be as nearly free as possible." Ariz. Const. art. 11, § 6. Count VI alleged ABOR had, by directing or otherwise permitting the universities in question to offer in-state tuition to students who were not "lawfully present" for purposes of eligibility for in-state tuition or other state or local public benefits, violated A.R.S. §§ 15-1803(B) and -1825(A), failed to collect monies accruing to it or the State as required by A.R.S. § 25-143, and caused the illegal payment of public monies in violation of A.R.S. § 35-212. ¶3 ABOR filed three separate motions to dismiss, asserting that: (1) the Attorney General lacked authority to initiate the lawsuit; (2) Counts I-V presented nonjusticiable political questions; and (3) ABOR was entitled to legislative immunity because the tuition-setting policies that formed the basis of the State's complaint were legislative actions. The State amended its complaint in January 2018 to seek recovery of illegally spent public monies in addition to the prospective relief sought in the original complaint. 2 STATE v. AZ REGENTS Decision of the Court ¶4 After oral argument on the motions, the superior court granted ABOR's first motion to dismiss, concluding the State lacked authority to initiate the lawsuit. After receiving briefing on whether the complaint should be dismissed with or without prejudice, the court dismissed the ...
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