State ex rel. Brnovich v. Ariz. Bd. of Regents
| Decision Date | 20 August 2019 |
| Docket Number | No. 1 CA-CV 18-0420,1 CA-CV 18-0420 |
| Parties | STATE OF ARIZONA, ex rel. MARK BRNOVICH, ATTORNEY GENERAL, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, Defendant/Appellee. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Connie Contes, Judge
AFFIRMED
Drew C. Ensign, Robert J. Makar, Dustin D. Romney, Katherine H. Jessen
Counsel for Plaintiff/Appellant
Counsel for Defendant/Appellee
MEMORANDUM DECISIONJudge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.
¶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.
¶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.
¶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 State's first amended complaint with prejudice. It did not award fees to either party.
¶5 The State timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
¶6 The State argues the superior court erred by: (1) granting the Board's first motion to dismiss; and (2) dismissing the first amended complaint with prejudice. For the following reasons, we affirm.
¶7 We review dismissals for lack of standing de novo.1 Judson C. Ball Revocable Tr. v. Phx. Orchard Grp. I, L.P., 245 Ariz. 519, 521-22, ¶ 5 (App. 2018). We also review interpretations of statutes de novo. Glazer v. State, 244 Ariz. 612, 614, ¶ 8 (2018).
¶8 First, we must address ABOR's contention that the State's request for injunctive relief relating to Count VI is moot. We agree that the relief sought is moot.
¶9 "This Court generally declines to address moot issues as a policy of judicial restraint," but we "will make an exception . . . for matters of public importance or those capable of repetition yet evading review." Prutch v. Town of Quartzsite, 231 Ariz. 431, 435, ¶ 10 (App. 2013). "[A] case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties." BT Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 300-01, ¶ 9 (2012) (quoting Sedona Private Prop. Owners Ass'n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5 (App. 1998)). "[V]oluntary cessation of the questioned practices will not automatically moot the injunctive remedy." State ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz. 483, 486 (App. 1981). "Mootness exists in the issuance of injunctions only where events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Id. The court must look at "factors which indicate proof of likelihood to engage in future violations," including "past violations, the involuntary cessation of these violations, and their continuance in disregard of the lawsuit." Id. "[T]he burden of proof . . . is upon the plaintiff to show a likelihood that the defendant will in the future engage in the conduct sought to be enjoined." Id. at 487.
¶10 Here, the State sought injunctive relief to "prevent[] and enjoin[] ABOR from violating the Arizona Constitution and Arizona law" and "require[] ABOR to fulfill its duties as required by Arizona law." As both parties recognize, while this case was being litigated, ABOR voluntarily ceased its policy of offering in-state tuition to those without lawful immigration status. See Ariz. Bd. of Regents, Statement from ABOR Chair Bill Ridenour Regarding Arizona Supreme Court Decision in MCCCD Case Prohibiting In-State Tuition for DACA Students (Apr. 9, 2018), https://www.azregents.edu/sites/default/files/news-releases/Statement from ABOR Chair Bill Ridenour Regarding Arizona Supreme Court Decision in DACA Case_April 9 2018.pdf; see also State ex rel. Brnovich v. Maricopa Cty. Comty. Coll. Dist. Bd., 243 Ariz. 539 (2018). The State has not addressed any of the above-mentioned factors in support of their argument that the issue is not moot. Because ABOR has voluntarily ceased the objected-to conduct and the State has not shown "a likelihood that [ABOR] will in the future engage in the conduct sought to be enjoined," see Goodyear, 128 Ariz. at 487, we conclude the State's request for injunctive relief as it relates to Count VI is moot.
¶11 Despite our conclusion that the injunctive relief sought by the State relating to Count VI is moot, we may still address the State's arguments regarding the motion to dismiss because the State also sought declaratory and special action relief in its first amended complaint. See Prutch, 231 Ariz. at 435, ¶ 11 ().
¶12 The State asserts: (1) the court erred by concluding as a matter of law that the Attorney General lacked authority to bring claims pursuant to A.R.S. § 35-212; (2) A.R.S. § 41-193(A)(1)-(2) provides an independent basis for bringing all six counts and McFate should be overruled;2 and (3) the dismissal cannot be affirmed as to Counts I-V on alternative grounds. Because we affirm the superior court's dismissal for lack of subject-matter jurisdiction, we need not address the remaining two arguments. See Fappani v. Bratton, 243 Ariz. 306, 309, ¶ 8 (App. 2017) ().
¶13 The Attorney General "may initiate proceedings on behalf of the State . . . but these instances are dependent upon specific statutory grants of power." McFate, 87 Ariz. at 144; see also State ex rel. Woods v. Block, 189 Ariz. 269, 272 (1997) () (internal quotation marks omitted). Section 35-212 authorizes the Attorney General to "bring an action . . . to . . . [e]njoin the illegal payment of public monies" and "[r]ecover illegally paid public monies." A.R.S. § 35-212(A).
¶14 The parties dispute the meaning of "payment" in A.R.S. § 35-212. The State asserts that because ABOR is responsible for expending public money for instruction and in-state tuition is below the cost of providing instruction, ABOR necessarily makes payments of public monies to cover the difference between in-state tuition and the cost of instruction. It argues such payments are equivalent to subsidies, and it cites McClead v. Pima County, 174 Ariz. 348 (App. 1992), for the proposition that subsidies qualify as payments in the context of A.R.S. § 35-212.
¶15 We agree with ABOR that collecting tuition does not constitute a "payment" under A.R.S. § 35-212. The statute cited by the State in the first amended complaint, A.R.S. § 35-143, states that "amounts due any budget unit shall be collected" and that "[a]ny person or officer who neglects the collection of such fees or monies shall be liable to the state, both personally and on his bond" (emphases added). This Court has held that "the collection of funds . . . does not establish any identifiable payment that may be prevented or recovered." Biggs v. Cooper, 234 Ariz. 515, 522, ¶ 19 (App. 2014), aff'd in part, vacated in part on other grounds, 236 Ariz. 415 (2014).
¶16 The State attempts to distinguish Biggs by asserting that A.R.S. §§ 15-1626(A)(13)3 and -16644 provide ABOR an "express expenditure power," unlike in Biggs. However, we conclude that this is an irrelevant distinction, because the State's complaint did not challenge ABOR's exercise of that power through...
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