Gov. Jan Brewer is threatening to legally handcuff Attorney General Terry Goddard
Brewer
PHOENIX – Gov. Jan Brewer is threatening to legally handcuff Attorney General Terry Goddard as they butt heads over who gets to call the shots for the state in a U.S. Supreme Court case involving a controversial state law on school funding.
The Democratic attorney general balked when the Republican governor directed him to file a legal brief with the U.S. Supreme Court to put the state on record in support of a 2006 state law on funding for programs for students learning English.
“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,” Brewer told Goddard in a March 31 letter.
Goddard, who declined to be interviewed for this story, has told Brewer that because the governor herself wasn’t a party in the case, that she was mistaken to think she determines the legal position of the state itself.
Arizona law, Goddard’s letter said, “makes it clear that as the chief legal officer for the state, the attorney general is responsible for representing the state and rendering such legal services as the state requires, which includes determining the appropriate legal position to be taken on behalf of our state.”
Brewer responded by saying Goddard couldn’t act as both attorney and client. She also noted that Goddard previously had said that her predecessor – Democrat Janet Napolitano – effectively decided the state’s position in the legal battle over English Language Learning programs.
Now, she said in her March 31 letter, “I fear that politics may be at play.”
The turf battle between Brewer and Goddard, who both are regarded as possible 2010 candidates for governor, stems from an appeal filed by state Superintendent of Public Instruction Tom Horne and Republican legislative leaders. The appeal tries to overturn a lower court ruling barring enforcement of the law, which set a process for school districts to get state funding for ELL programs.
Supporters of the law contend it resolves the case by finally providing a way to fund ELL programs while instilling academic reforms and fiscal accountability in the process. Critics argue the law shortchanges school districts by forcing them to rob other parts of their budget to make up for continued inadequate funding for ELL programs.
The ELL dispute isn’t the first time that an Arizona attorney general and the state’s governor have been at odds over authority to dictate the state’s legal course.
In 1996, then-Gov. Fife Symington directed then-Attorney General Grant Woods, a fellow Republican, to dismiss the state’s lawsuit against tobacco companies. Woods refused but did dismiss a state agency under Symington’s control as a plaintiff in the case. However, the agency and its damage claims were added back to the lawsuit at the direction of Symington’s replacement, Jane Hull, after Symington left office midterm.
In the current dispute, both Brewer and Goddard have their supporters.
State Rep. David Lujan, a Phoenix Democrat who is contemplating running for the Democratic nomination for attorney general in 2010, said there has always been and probably always will be tension regarding the extent of an attorney general’s authority.
“I do think he is taking the right position as the elected top attorney for the state,” said Lujan, a former assistant attorney general.
Horne, who also is exploring a candidacy for attorney general, said Goddard wasn’t advocating for the state or its taxpayers.
“When I was in law school, one of the first things I learned is that you’re supposed to represent the client,” Horne said.
Goddard’s letter to Brewer said the Arizona law, if upheld, could put large amounts of federal education funding to the state at risk. Horne disputed that.