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State ex rel. Brnovich v. Maricopa County Community College District Board

Court of Appeals of Arizona, First Division

June 20, 2017

STATE OF ARIZONA ex rel. Attorney General Mark Brnovich, Plaintiff/Counter-Defendant/Appellant,
MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD, Defendant/Appellee, ABEL BADILLO and BIBIANA VAZQUEZ, Intervenor-Defendants/Counter-Plaintiffs/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2013-009093 The Honorable Arthur T. Anderson, Judge

          Arizona Attorney General's Office, Phoenix By Kevin D. Ray, Rusty D. Crandell Counsel for Plaintiff/Counter-Defendant/Appellant

          Osborn Maledon, P.A., Phoenix By Mary R. O'Grady, Lynne C. Adams, Eric M. Fraser Counsel for Defendant/Appellee

          Ortega Law Firm PC, Phoenix, By Daniel R. Ortega, Jr. Co-Counsel for Intervenor-Defendants/Counter-Plaintiffs/Appellees

          Miller, Pitt, Feldman & McAnally, P.C., Phoenix By José de Jesus Rivera, Nathan J. Fidel Co-Counsel for Intervenor-Defendants/Counter-Plaintiffs/Appellees

          Mexican American Legal Defense and Educational Fund, Los Angeles, CA By Victor Viramontes, Martha L. Gomez Co-Counsel for Intervenor-Defendants/Counter-Plaintiffs/Appellees

          Law Office of Noel Fidel, Phoenix By Noel Fidel Co-Counsel for Intervenor-Defendants/Counter-Plaintiffs/Appellees

          Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Paul J. McMurdie joined and Judge Patricia K. Norris specially concurred.


          JONES, Judge.

         ¶1 In 1996, Congress enacted two federal statutes intended to restrict welfare and public benefits for aliens. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) defines which aliens qualify for eligibility to receive state and local public benefits. Although PRWORA also generally allows the states to define alien eligibility for public benefits, part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not allow any state to provide nonqualified aliens with postsecondary education benefits based upon their residence within the state. Ten years later, Arizona voters passed Proposition 300 (Prop 300) which, in relevant part, incorporates IIRIRA's prohibition on providing the quintessential residence-based, postsecondary education benefit - in-state tuition - to non-qualified aliens.

         ¶2 In 2012, the U.S. Department of Homeland Security (DHS), through a lawful exercise of its prosecutorial discretion, elected to defer deportation of unauthorized aliens who entered the country as children, a departmental policy otherwise known as Deferred Action for Childhood Arrivals (DACA). Congress permits DHS to issue employment authorization documents (EADs) to DACA recipients but has not specified whether DACA recipients qualify for in-state tuition or other state and local public benefits. Thereafter, the Maricopa County Community College District (MCCCD) began accepting EADs from DACA recipients as evidence that they qualified for residence-based, in-state tuition benefits. The Arizona Attorney General (AAG) objected, but the trial court upheld MCCCD's actions in a subsequent declaratory action.

         ¶3 The AAG now appeals the trial court's orders denying its motion for judgment on the pleadings and granting summary judgment in favor of MCCCD and partial summary judgment in favor of Abel Badillo and Bibiana Vazquez (the Students). In reconciling federal and Arizona law, we hold DACA recipients are not eligible to receive in-state tuition benefits and therefore reverse the court's orders and remand with instructions.


         ¶4 In June 2012, DHS initiated the DACA policy, which allowed DHS to defer the removal of certain unauthorized aliens[1] and redirect immigration enforcement resources away from those individuals who lacked unlawful intent in entering the United States and have since demonstrated productive use of their time. See generally Memorandum from Janet Napolitano, Sec'y, DHS, to David V. Aguilar, Acting Comm'r, U.S. Customs & Border Patrol, Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs., and John Morton, Dir., U.S. Immigration & Customs Enf't (Jun. 15, 2012), (Napolitano Memo). DACA originally applied to unauthorized aliens who: (1) came to the United States under the age of sixteen; (2) had continuously resided in the United States for at least five years preceding DACA's institution; (3) were not older than thirty before June 2012; (4) were currently in school, had graduated from high school or received a GED, or had been honorably discharged from the U.S. military; and (5) had not been convicted of a felony or significant or multiple misdemeanors. Id. Individuals qualifying for deferment under DACA are required to apply for an EAD from the United States Citizenship and Immigration Services (USCIS). See 8 C.F.R. § 274a.12(c)(14).

         ¶5 Shortly after the implementation of DACA, MCCCD began accepting EADs from DACA recipients as evidence of residency for purposes of receiving in-state tuition benefits. In 2013, the AAG filed a declaratory action, seeking a determination that MCCCD's policy violates Arizona law and an injunction prohibiting MCCCD from allowing DACA recipients to obtain subsidized tuition rates. The Students, two DACA recipients attending MCCCD colleges and benefitting from in-state tuition benefits, successfully intervened and asserted constitutional defenses in addition to MCCCD's statutory defenses.

         ¶6 Both MCCCD and the Students filed motions for summary judgment. After briefing and oral argument, the trial court concluded that, under the relevant federal and state law, DACA recipients are "lawfully present" and therefore eligible for in-state tuition benefits. Because it granted Appellees' motions on statutory grounds, the court did not decide the constitutional claims presented in the Students' motion. The AAG timely appealed. This Court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)[2] and -2101(A)(1).


         I. The AAG's Authority to Bring Suit

         ¶7 As an initial matter, MCCCD argues the trial court's orders must be affirmed because the AAG had neither statutory nor constitutional authority to initiate its suit. Whether a party has standing to sue presents a question of law we review de novo. Pawn 1st, L.L.C. v. City of Phx., 231 Ariz. 309, 311, ¶ 11 (App. 2013) (citing Ctr. Bay Gardens, L.L.C. v. City of Tempe City Council 214 Ariz. 353, 356, ¶ 15 (App. 2007)).

         ¶8 The AAG's powers derive solely from the Arizona Constitution or Arizona statutes. State ex rel. Woods v. Block, 189 Ariz. 269, 272 (1997) (quoting Fund Manager, Pub. Safety Pers. Ret. Sys. v. Corbin, 161 Ariz. 348, 354 (App. 1988), and citing Ariz. State Land Dep't v. McFate, 87 Ariz. 139, 142 (1960)). In asserting its authority to pursue this litigation, the AAG relies upon A.R.S. § 41-193(A)(2), which states "[a]t the direction of the governor or when deemed necessary by the attorney general, [the AAG shall] prosecute and defend any proceeding in a state court . . . in which the state or an officer thereof is a party or has an interest." This section "does not permit the Attorney General, in the absence of specific statutory power, to initiate an original proceeding." McFate, 87 Ariz. at 140, 145.

         ¶9 We find no law, however, prohibiting the chief executive of Arizona from directing a lesser executive officer to enforce a statute. Indeed, Arizona's governor is tasked with supervising the official conduct of all State officers and "is obligated and empowered to protect the interests of the people and the State by taking care that the laws are faithfully executed." Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 470, ¶ 35 (App. 2007) (quoting McFate, 87 Ariz. at 148); see also Ariz. Const. art. 5, § 4; A.R.S. § 41-101(A)(1). Therefore, "the governor's order is the highest executive voice within this state and may not be ignored by a lesser officer of the executive branch." Id. (quoting State v. Hooker, 128 Ariz. 479, 481 (App. 1981)).

         ¶10 Here, after the AAG filed this action, then-Governor Jan Brewer directed the AAG to take "all legal actions" to enforce the laws regarding aliens' eligibility for in-state tuition benefits, which she interpreted as proscribing students without lawful immigration status from receiving in-state tuition benefits or other financial aid, and to continue this litigation to its conclusion. The Governor had an interest in the outcome because, by virtue of her position, she was obligated to protect the public's interest by ensuring the laws were faithfully executed. With that interest in mind, the Governor directed the AAG to "prosecute" the current proceeding within the meaning of A.R.S. § 41-193(A)(2).

         ¶11 Contrary to MCCCD's contention, there is no evidence the Governor used the take-care clause of the Arizona Constitution, see Ariz. Const. art. 5, § 4 ("The governor . . . shall take care that the laws be faithfully executed."), to create statutory standing for the AAG, thereby making a legislative decision in violation of her executive authority, see Litchfield Elementary Sch. Dist. No. 79 v. Babbitt, 125 Ariz. 215, 220 (App. 1980) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-88 (1952)). Pursuant to her constitutional and statutory authority as chief executive, the Governor ordered the AAG to serve as her proxy in enforcing Arizona's laws. The AAG, therefore, had a legal right, derived from the Governor's command, to seek a judicial determination that MCCCD acted unlawfully. We conclude the AAG had standing to bring the underlying declaratory and injunctive actions against MCCCD.

         II. DACA Recipients' Eligibility for In-State Tuition

         ¶12 The AAG argues the trial court erred in interpreting state and federal law in a manner that permits DACA recipients to qualify for in-state tuition benefits. We review the interpretation and application of statutes de novo. See John Munic Enters., Inc. v. Laos, 235 Ariz. 12, 15, ¶ 5 (App. 2014) (citing First Credit Union v. Courtney, 233 Ariz. 105, 107, ¶ 9 (App. 2013)).

         A. PRWORA, IIRIRA, and Prop 300: Defining Alien Eligibility for Welfare and Public Benefits

         ¶13 A brief examination of the history and content of the relevant federal and state statutes is instructive.

         ¶14 In 1996, Congress passed PRWORA, Pub. L. No. 104-193, tit. IV, §§ 400-51, 110 Stat. 2105, 2260-77 (1996) (partially codified as amended at 8 U.S.C. §§ 1601 to -1646), and IIRIRA, Pub. L. No. 104-208, div. C, § 505, 110 Stat. 3009, 3681 (1996) (codified as 8 U.S.C. § 1623). PRWORA was generally enacted "to remove the incentive for illegal immigration provided by the availability of public benefits, " 8 U.S.C. § 1601(6), and specifically delineates which aliens are eligible for state and local public benefits, see 8 U.S.C. §§ 1621(a), 1641(b)-(c). In relevant part, PRWORA defines state and local public benefits as:

[A]ny retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual . . . by an agency of a State or local government or by appropriated funds of a State or local government.

8 U.S.C. § 1621(c)(1)(B).

         ¶15 Under PRWORA, unless an alien is "(1) a qualified alien (2) a nonimmigrant[3] . . ., or (3) an alien who is paroled into the United States" for urgent humanitarian reasons or significant public benefit, he or she is not eligible for state or local public benefits. 8 U.S.C. §§ 1621(a), 1641(b). "Qualified aliens" are statutorily defined to include: (1) aliens lawfully admitted for permanent residence; (2) aliens granted asylum; (3) refugees; (4) aliens whose deportations are withheld because removal would threaten the alien's life or freedom; (5) certain Cuban and Haitian entrants; (6) certain battered aliens, or their spouses or children; and (7) certain victims of sex trafficking. 8 U.S.C. § 1641(b)-(c). For ease of reference, we refer to these groups, collectively, as qualified aliens. We likewise refer to aliens who do not fit within these specifically defined groups as non-qualified aliens.

         ¶16 Although the individual states retain the authority under PRWORA to enact a statute that would affirmatively provide "an alien who is not lawfully present" eligibility for state and local public benefits "for which such alien would otherwise be ineligible under [8 U.S.C. § 1621(a)], " 8 U.S.C. § 1621(d), [4] this general grant of authority is limited by IIRIRA, which provides:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

8 U.S.C. § 1623(a). IIRIRA has been interpreted as applying to in-state tuition benefits. See Martinez v. Regents of the Univ. of Cal., 241 P.3d 855, 865 (Cal. 2010) ("[Section 1623(a)] provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.") (quoting H.R. Rep. No. 104-828, at 240 (1996) (Conf. Rep.)); see generally Day v. Bond, 500 F.3d 1127 (10th Cir. 2007) (presuming in-state tuition is a benefit governed by IIRIRA but concluding the plaintiffs lacked standing to pursue a claim).

         ¶17 Ten years after PRWORA and IIRIRA were enacted, Arizona voters approved Prop 300 to ostensibly prohibit unauthorized aliens from receiving in-state tuition or educational financial aid derived from publicly appropriated funds. See generally Public Program Eligibility, 2006 Ariz. Legis. Serv. Sen. Conc. Res. 1031 (2d Reg. Sess.). Thus, pursuant to A.R.S. § 15-1803(B):

In accordance with [IIRIRA], a person who [i]s not a citizen or legal resident of the United States or who is without lawful immigration status is not entitled to classification as an instate student pursuant to [A.R.S.] § 15-1802 or entitled to classification as a county resident pursuant to [A.R.S.] § 15-1802.01.

Section 15-1825(A) similarly prohibits a student seeking postsecondary education in Arizona "who is not a citizen of the United States [or] is without lawful immigration status" from receiving "tuition waivers, fee waivers, grants, scholarship assistance, financial aid, tuition assistance or any other type of financial assistance that is subsidized or paid in whole or in part with state monies." Section 15-1825(B) further requires each community college and university to report the total number of students not entitled to educational financial aid because they are "not lawfully present."

         ¶18 In sum: (1) PRWORA grants eligibility for state and local public benefits only to "qualified" aliens who are "lawfully present, " but separately permits the states, individually, to extend state and local public benefits to non-qualified aliens; (2) IIRIRA restricts the states' authority to extend a specific public benefit - residence-based, in-state tuition - to aliens "not lawfully present"; and (3) Arizona statutes, adopted at the direction of Arizona voters, affirmatively deny in-state tuition benefits to persons "without lawful immigration status." Whether DACA recipients are eligible for in-state tuition benefits turns on whether they are "lawfully ...

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