State has no right to challenge resident tuition for DACA students, attorney argues

2014-04-26T00:00:00Z State has no right to challenge resident tuition for DACA students, attorney arguesBy Howard Fischer Capitol Media Services Arizona Daily Star

PHOENIX — An assistant attorney general told a judge Friday that Gov. Jan Brewer is entitled to go to court to enforce pretty much any state law she wants, even those that don’t involve state government.

Brewer and Attorney General Tom Horne are challenging a Maricopa County Community College Governing Board decision that students in the federal Deferred Action for Childhood Arrivals program are entitled to pay the same in-state tuition as any other Arizona resident.

But the attorney for the community college district is trying to get a lawsuit filed by Horn, at Brewer’s behest, dismissed. She contends the governor has no standing to sue because the district, although a political subdivision of the state, operates independently.

Assistant Attorney General Leslie Cooper said the Arizona Constitution requires the governor to “take care that the laws be faithfully executed.” She told Maricopa County Superior Court Judge Arthur Anderson that there is nothing in that language putting any limits on that, and that Brewer has every right to institute a legal challenge.

But Mary O’Grady, representing the college, told Anderson that, inasmuch as the community college system is not part of state government but simply a political subdivision of the state, Arizona law grants authority to run the colleges to an independently elected board.

“She can express her opinion,” O’Grady said. “She’s not in charge.”

O’Grady also said Horne, with or without a letter from the governor, has no independent authority to sue the college Governing Board.

Following the Maricopa County board’s lead, the Pima Community College board voted last year to give resident tuition to students in the federal program, but it has not been included in the suit.

If the judge rejects Cooper’s contention, it significantly undermines Horne’s prospects for challenging any of the college governing boards that have done the same thing.

Central to the fight is a 2006 ballot measure that limits in-state tuition to citizens and legal residents. It also denies waivers of tuition or fees, grants, scholarships, financial aid, tuition assistance “or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.”

Horne contends those who are not citizens or legal residents are must pay the higher “out-of-state” tuition, regardless of how long they have lived in the state.

The college, however, notes those in the DACA program — brought here illegally as children — have been issued permits by the federal government to not only remain but also to work here, which it says qualifies them for resident tuition.

The attorney general already has sent a letter to Pima Community College warning that it, too, could wind up in court. Jeff Silvyn, the college’s general counsel, said he reads state law to allow students with federal work permits to pay in-state tuition if they meet other residency requirements.

O’Grady said Cooper’s arguments about a constitutional right by Brewer to enforce all laws are off-base.

She said that language is designed to require the governor, as chief executive, to make sure state agencies follow the laws. O’Grady said the governor does not administer the laws for every other political subdivision of the state — which includes many types of jurisdictions run by people who are elected by voters.

O’Grady said Cooper’s arguments would mean that the governor would have the power to go to court to enforce laws that govern conduct between private parties, like contracts.

Cooper said that even if Brewer had no independent constitutional right to sue — a point she is not conceding — there is other authority. She specifically cited a state statute saying that the attorney general, on his own or at the direction of the governor, can file suit in any case “in which the state ... has an interest.”

“The state has an interest in seeing that statutes that are enacted as a result of voter initiative are followed,” Cooper said.

Anderson did question O’Grady about what would happen if he saw things her way.

“Is there anybody, any entity in this state, that could bring a challenge to what happened here?” he asked.

O’Grady said the 2006 initiative does give individual citizens the right to sue.

But she conceded that right to sue might be limited to situations in which someone alleged the community college was not checking the documentation required under the law. O’Grady said the college is checking the documents but has simply come to a different legal conclusion about what they mean in terms of determining legal residency.

And O’Grady said if a citizen suit were brought, there would have to be a separate ruling on whether that person had legal standing.

Anderson gave no indication of when he will rule.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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