The Arizona attorney general, like those in a few other states, does not have common law authority, and the Arizona constitution provides that the powers and duties of the attorney general “shall be as prescribed by law.”1 Arizona statutes establish the Department of Law and provide that the department “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.”2
In a 1960 decision, Arizona State Land Department v. McFate,3 the Arizona Supreme Court held that the statute did not give the attorney general standing to sue another state agency for violating the state constitution. The McFate court based its holding on two grounds: first, that the attorney general is the legal advisor to state agencies, so he cannot take a position in conflict with the agency unless specifically authorized by statute to do so; and second, that the word “prosecute” in the authorizing statute did not include bringing an action, but only “litigating an existing one.”
At the request of the Arizona attorney general, the state’s Supreme Court recently considered whether to overrule McFate. The Arizona Supreme Court concluded that the attorney general could not challenge the actions of the state Board of Regents under the state constitution, although he could bring statutory claims.
The Supreme Court first discussed the Court of Appeals’ concurrence, in which the judges opined that the term “prosecute” should not exclude initiating cases from the attorney general’s statutory powers. The court held “To the extent the Attorney General is empowered to “prosecute” cases under §41-193(A)(2), that authority includes initiating litigation.” However, the court affirmed McFate’s holding that the attorney general does not have authority to “right constitutional wrongs committed by state officials and agencies.” The court did so “as a matter of stare decisis, statutory construction, and legislative validation of McFate.
The Arizona Supreme Court stated that stare decisis is particularly applicable in cases of statutory interpretation, because the legislature could have changed the statute at any time. In the case of McFate, the precedent is 60 years old and overruling it would result in a “significant expansion in the Attorney General’s power that neither the constitution nor legislature contemplated.” The court stated that the statute “clearly created duties of legal representation rather than broad grants of authority.” The court also noted that since McFate was decided, the Arizona legislature has enacted more than 100 statutes “expressly empowering the Attorney General to take specified legal actions, including against state officers and agencies.”
The court then turned to the attorney general’s statutory claim that the Board of Regents had illegally paid public monies by subsidizing in-state tuition for students who were unlawfully present in Arizona. The attorney general alleged that because in-state tuition does not cover the costs of providing a student’s education, the Board of Regents had spent public monies. The Board of Regents disagreed with the attorney general’s assertion, but the court held that the attorney general’s claims could survive a motion to dismiss and the trial court should allow discovery on the issue before considering a motion for summary judgment. State ex rel. Brnovich v. Ariz. Bd. of Regents, 476 P.3d 307 (Ariz. 2020).