at odds over AG's power
Governor threatens action after differing lawsuit stance
By Howard Fischer
Tucson, Arizona | Published: http://www.azstarnet.com/allheadlines/287648
PHOENIX — Gov. Jan Brewer is threatening to try to strip Attorney General Terry Goddard of some of his legal authority for not taking her side in the U.S. Supreme Court dispute over state funding of English-learner programs.
In a letter to Goddard, Brewer said he has, until now, taken positions on defending state laws based on direction from the governor. In those cases, the governor said, "you rightfully abided."
But Brewer, in a letter to Goddard, called it "troubling" that he is now ignoring the direction from her office.
"I fear politics may be at play," she said.
Goddard, however, told Brewer in his response that she is the one who is legally off-base.
"Your letter appears to be based on the mistaken premise that the governor determines the legal position to be taken on behalf of the state of Arizona in pending litigation," he wrote. He pointed out that the lawsuit is not against the governor but is against the state itself and the state Board of Education.
Brewer said she was not convinced, contending in her March 31 letter that Goddard is trying to "usurp and undermine" her authority. And she included a threat: "If you continue to insist that you alone speak for the state of Arizona in litigation, then I will pursue legislation that will require you to act within the scope of your constitutional authority and to refrain from exercising powers not lawfully yours in future litigation involving the state."
The Arizona Constitution gives the Attorney General's Office no independent authority, saying the powers and duties "shall be as prescribed by law." But Goddard said that doesn't allow Brewer and the Legislature to strip him of what he said are inherent constitutional powers.
While her threat remains, it comes too late to affect the case. Goddard already has filed a legal brief with the nation's high court arguing that a measure adopted by the Republican-controlled Legislature does not put Arizona into compliance with federal laws making states responsible for ensuring all students have an equal opportunity to learn.
And the time for filing new briefs for the case, set to be heard on April 20, has expired.
More than the finer points of law may be at stake. Brewer, a Republican who inherited her job after Democrat Janet Napolitano quit in January, has not ruled out wanting a four-year term of her own in 2010. And Goddard, who cannot seek another term as attorney general, is the highest-ranking Democrat in statewide office and has run twice before — unsuccessfully — for governor.
At stake is a 1992 lawsuit that says the state is not meeting its obligation under federal law to "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." A federal judge, in a 2000 ruling, agreed. Subsequent changes to the funding formula by state legislators law have been ruled inadequate.
In 2006, lawmakers agreed to add another $40.6 million to programs for "English-language learners" — students not proficient in English. About 150,000 of the state's estimated 1.2 million public-school students are in that category.
But a federal appellate court found two provisions of that law illegal: limiting extra financial aid to help students to no more than two years each, and requiring schools that want additional state money to first divert other federal funds to English-learner programs.
State School Superintendent Tom Horne, a Republican, like Brewer and the leaders of the Legislature, wants the U.S. Supreme Court to rule that the state has done all that is required by federal law.
Goddard has sided with those suing the state and the 9th U.S. Circuit Court of Appeals in saying those provisions are illegal. In his legal briefs, which Brewer objects to, Goddard said what Horne and the GOP leadership want is relief from the original 2000 court order, which he said would leave the state in violation of federal laws and endanger $600 million a year in federal aid to Arizona schools.
"For the sake of Arizona's students, not to mention the overall fiscal health of our state, we must do no less," he wrote.
Brewer said the call is not his to make, citing two state constitutional provisions dealing with the power of the governor.
"These provisions clearly establish that the governor is in charge of the executive branch and sets the policy and positions of the state of Arizona," Brewer wrote. "Such powers do not and cannot devolve to the attorney general simply because a lawsuit is brought against the state."
Goddard said in his letter to Brewer that he hopes once the Supreme Court rules, "we can work together based on the guidance we receive from the court to address any remaining issues in this litigation."