Jan Brewer
Howard Fischer/Capitol Media Services

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.

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 there is nothing in that language putting any limits on that.

What all that means, Cooper argued, is that Brewer is free to tell her boss, Attorney General Tom Horne, to sue the governing board of Maricopa County Community College for deciding that students who are in the federal governments Deferred Action for Childhood Arrivals program are entitled to pay the same in-state tuition as anyone else who meets Arizona residency requirements.

But Mary O'Grady, representing the college, told Anderson that ignores the fact that the community college system is not part of state government but instead simply a political subdivision of the state. O'Grady said 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 that Horne, with or without a letter from the governor, also has no independent authority to sue the college governing board.

Hanging in the balance of what Anderson decides could be the future of the ability of DACA recipients statewide to get the lower tuition that some community colleges have offered: If the judge rejects Cooper's contention, then it leaves Horne powerless to challenge the actions of any of the college governing boards.

Central to the fight is a 2006 ballot measure 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 that 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. And that, it says, qualifies them for resident tuition.

Other community colleges have reached the same decision, to Horne's dismay.

The attorney general already has sent a letter to Pima Community College warning that it, too, could wind up in court because of the board's decision to allow students in the deferred-action program to pay the lower in-state tuition. 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.

Horne's arguments, however, become moot if the judge concludes he's in no legal position to enforce the law.

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

She said that language is inherently designed to require the governor, as chief executive, to make sure that state agencies follow the laws. O'Grady said the governor does not administer the laws for every other political subdivision of the state, a category that ranges from cities and counties to community college and even fire districts which generally are 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 even if Brewer has 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 where someone alleged that 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 then there would have to be a separate ruling on whether that person had legal standing.

Anderson gave no indication of when he will rule.

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