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State v. Ariz. Bd. of Regents - 8/20/2019

In an unpublished opinion, the Arizona Court of Appeals Division One affirmed the Attorney General’s limited authority to initiate civil actions but questioned the narrow interpretation given to the word “prosecute” in Ariz. State Land Dep’t v. McFate, 87 Ariz. 139 (1960).


AzAPP typically doesn’t cover unpublished decisions.  We made an exception for this case to highlight the decision’s unusual quirks.

The Attorney General filed a complaint against the Arizona Board of Regents arguing that offering in-state tuition to students who were not “lawfully present” violated Arizona’s constitution and statutes.  The trial court dismissed, and the Court of Appeals affirmed, both holding that the Attorney General lacked authority to bring the claims.  In a 1960 case, the Arizona Supreme Court held that the Attorney General’s statutory authority to “prosecute and defend” actions, did not provide independent authority to initiate civil actions.  Ariz. State Land Dep’t v. McFate, 87 Ariz. 139, 142-44 (1960).  The Attorney General “may initiate proceedings on behalf of the State . . . but these instances are dependent upon specific statutory grants of power.”  Id.        

The Court of Appeals issued a unanimous decision, but all three judges also joined a special concurrence that questioned the precedent they followed.  The concurrence stated the view that the narrow interpretation that the Supreme Court gave to the word “prosecute” in McFate is flawed.  The special concurrence noted that common usage at the time “suggests that the term ‘prosecute’ included civil actions and contemplated both the initiation and the continuation of legal proceedings.”  The special concurrence reviewed contemporary examples from Arizona’s cases, its statutes, and from Black’s Law Dictionary, which support that broader interpretation.  Finally, it noted that generally the words of Arizona’s laws should be construed consistently but that the McFate opinion ascribes different meanings to “prosecute” within the same sentence. 

The special concurrence is unique because it is authored by the same judge and joined by the same unanimous panel as the primary opinion.  It is also unusual for the Court not to publish a case with a separate opinion, particularly one in which all the judges questioned controlling precedent in a high-profile case.

Judge Morse authored and Judges Campbell and Cruz joined both the opinion and the special concurrence.

Posted by: Brian K. Mosley

Posted On: 9/4/2019