Skip to content
National Association of Attorneys General
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • NAAG Center on Cyber and Technology
      • NAAG Center for Excellence in Governance
      • NAAG Center for Supreme Court Advocacy
      • NAAG Center for Tobacco & Public Health
      • NAGTRI Center for Consumer Protection
      • NAGTRI Center for Ethics & Public Integrity
      • NAGTRI Center for International Partnerships & Strategic Collaboration
      • NAGTRI Center for Leadership Development
      • NAGTRI Center for Legal Advocacy & Faculty Development
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • ConsumerResources.org
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • NAGTRI Trainings
    • Online Learning
    • NAGTRI Faculty
    • Video Library
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • AGs in the News
    • Who is my Attorney General?
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
  • About NAAG
    • NAAG Staff
    • NAGTRI
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • NAGTRI
  • Contact Us
National Association of Attorneys General
  • Find My AG
  • NAGTRI
  • Consumer Complaints
  • Contact Us
Log In
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • NAAG Center on Cyber and Technology
      • NAAG Center for Excellence in Governance
      • NAAG Center for Supreme Court Advocacy
      • NAAG Center for Tobacco & Public Health
      • NAGTRI Center for Consumer Protection
      • NAGTRI Center for Ethics & Public Integrity
      • NAGTRI Center for International Partnerships & Strategic Collaboration
      • NAGTRI Center for Leadership Development
      • NAGTRI Center for Legal Advocacy & Faculty Development
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • ConsumerResources.org
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • NAGTRI Trainings
    • Online Learning
    • NAGTRI Faculty
    • Video Library
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • AGs in the News
    • Who is my Attorney General?
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
  • About NAAG
    • NAAG Staff
    • NAGTRI
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • NAGTRI
  • Contact Us

Attorney General Powers and Duties: Arizona Attorney General May Bring Statutory, but not Constitutional Claims Against State Agency

Home / Powers and Duties / Attorney General Powers and Duties: Arizona Attorney General May Bring Statutory, but not Constitutional Claims Against State Agency
April 20, 2021 Powers and Duties
Share this

  • Emily Myers
    Antitrust Counsel and NAGTRI Chief Editor
    National Association of Attorneys General

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).

 

 

 

 

Endnotes


  1. Ariz. Const. art. 5, §9. [↩]
  2. A.R.S. §41-193. [↩]
  3. 87 Ariz. 139, 348 P.2d 912 (1960), [↩]

Related Posts

Related Posts

powers and duties, attorney general powers

Recent Powers and Duties Decisions

powers and duties, attorney general powers

Recent Powers and Duties Decisions

powers and duties, attorney general powers

Recent Powers and Duties Decisions

Related Posts

  • Recent Powers and Duties Decisions
  • Recent Powers and Duties Decisions
  • Recent Powers and Duties Decisions

Recent Posts

  • 41 State Attorneys General Write CFPB in Support of Debt Bondage Repair Act
  • NAAG Announces Formation of Center on Cyber and Technology
  • The Anticorruption Manual: Section VI: Civil & Administrative Enforcement, Asset Forfeiture, & Collateral Consequences of Corruption
  • Press Invited to Attend Portion of Consumer Protection Conference
  • Supreme Court Report: City of Austin, Texas v. Reagan National Advertising of Austin, LLC, 20-1029

Connect with NAAG and the Attorney General Community

Create a NAAG account to subscribe to our newsletters or mailing lists.

Create Account
Subscribe
Marble columns and the top of a federal building

scroll to filters

White Logo for the National Association of Attorneys General

1850 M Street NW
12th floor
Washington, DC 20036

TEL 202-326-6000
EMAIL 

Youtube
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • NAAG Center on Cyber and Technology
      • NAAG Center for Excellence in Governance
      • NAAG Center for Supreme Court Advocacy
      • NAAG Center for Tobacco & Public Health
      • NAGTRI Center for Consumer Protection
      • NAGTRI Center for Ethics & Public Integrity
      • NAGTRI Center for International Partnerships & Strategic Collaboration
      • NAGTRI Center for Leadership Development
      • NAGTRI Center for Legal Advocacy & Faculty Development
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • ConsumerResources.org
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • NAGTRI Trainings
    • Online Learning
    • NAGTRI Faculty
    • Video Library
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • AGs in the News
    • Who is my Attorney General?
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
  • About NAAG
    • NAAG Staff
    • NAGTRI
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • NAGTRI
  • Contact Us
  • Find My AG
  • NAGTRI
  • Consumer Complaints
  • Contact Us
  • Accessibility Statement
  • Privacy & Cookies Notice
  • Sitemap
  • Member Login

About the National Association of Attorneys General

As the nonpartisan national forum for the 56 state and territory attorneys general and their staff, NAAG provides collaboration, insight, and expertise to empower and champion America's attorneys general.
Learn More

© 2022 Copyright National Association of Attorneys General

Website by Yoko Co

Scroll To Top