Thursday, September 14, 2017

AZ AG's suit against ABOR should include the legislature

AZBlueMeanie at Blog for Arizona asserts ABOR should implead the Arizona legislature as an indispensable party in tuition suit.

There are three things there to understand. First, as I posted on last Saturday, AZ AG sues Regents over tuition. AG Mark Brnovich is going after the Board of Regents (“ABOR”) because they are letting DACA students pay in-state tuition. His legal hatchet is a law suit blaming the rise in tuition on the rate-setting practices of the Board and universities under it. That the legislature is culpable for their cutting university funding is deemed legally “irrelevant” by the AG’s office. That this - inadequate funding of higher ed and cost shifting from legislatures to students - is a nationwide problem is ignored. That the failure of the AZ legislature to fund higher ed properly places AZ university funding near the bottom of the 50 states is ignored.

The AZ constitution stipulates that “The university and all other state educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible” and that “the legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions” (Article 11, sections 6 and 10). That’s the second thing. The legislature is constitutionally mandated to make higher education more affordable by taxation - and it has not done so.

The third thing is what is counseled by AZBlueMeanie. What is “implead”? From Wikipedia:

Impleader is a procedural device before trial in which one party joins a third party into a lawsuit because that third party is liable to an original defendant. Using the vocabulary of the Federal Rules of Civil Procedure, the defendant seeks to become a third-party plaintiff by filing a third party complaint against a third party not presently party to the lawsuit, who thereby becomes a third-party defendant. This complaint alleges that the third party is liable for all or part of the damages that the original plaintiff may win from the original defendant.

That means that the Board of Regents can bring the legislature into the suit and making it “liable for all or part of the damages” that the AG might win in its suit. As I pointed out in my post, universities are not solely responsible for rising tuition. The legislature is a causal agent, if not the causal agent, and so should be named in the AG’s suit. AZ Blue Meanie offers the legal basis for doing so: “ABOR should move the court for impleader of the Arizona legislature, because the constitutional provisions for which Brnovich is suing ABOR are actually express directives to the Arizona legislature … I cannot imagine that the court would not grant ABOR’s motion to implead the Arizona legislature as an indispensable party.”

It is true that the court cannot order the legislature to appropriate more funding for higher education (“political question” doctrine). But it is in the court’s jurisdiction to declare the meaning of state constitutional provisions and to determine the rights and obligations of the parties to the lawsuit under the constitution. This is why the Arizona legislature needs to be impleaded.

No comments:

Post a Comment