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Robb: As own client, Goddard raising ELL against state, new governor as own client

Miriam Flores was a third-grade student when the English-language learning lawsuit was filed on her behalf. In the time the case has been languishing, she's graduated from the University of Arizona.

Miriam Flores was a third-grade student when the English-language learning lawsuit was filed on her behalf. In the time the case has been languishing, she's graduated from the University of Arizona.

Weird and contorted cases are nothing new to the U.S. Supreme Court.

Still, the justices are likely to find it even stranger than usual when various Arizona worthies stand before them April 20 to argue the adequacy of the state’s funding for students who are English learners.

To begin with, state Attorney General Terry Goddard will be arguing that his client, “the state of Arizona,” is in fact guilty of violating various federal laws.

There is, of course, no such entity as the “state of Arizona” that has confessed to serial legal violations. Goddard is basically his own client.

Goddard used to have some justification for his position, since former Gov. Janet Napolitano also wanted the state to lose the case. And the state Board of Education, a named defendant and mostly composed of Napolitano appointees, took the same position.

But Arizona has a new governor, Jan Brewer. She wrote a letter to Goddard instructing him to, like, you know, defend the state. He wrote back telling her to go fly a kite.

Goddard’s behavior in this case is unconscionable. I can understand a state attorney general saying that he cannot in good conscience defend a particular state law. But the responsible thing to do is to step aside and let someone else defend the statute.

To stay in the case as the state’s lawyer and argue against a duly enacted state law is an act of legal treachery.

Of course, Goddard isn’t the only lawyer in the case with basically himself as a client. The lawyer trying to get additional funding through the federal courts, Tim Hogan of the Arizona Center for Law in the Public Interest, also has solitary client conferences.

The case originally was filed in 1992. Hogan’s nominal clients are all grown up.

Contrary to attorneys general arguing that their state is violating the law, it’s not unusual for public interest lawyers to have nominal rather than active clients. Hogan, however, not only wants to represent himself. He also wants no opposition.

The only entities fighting Hogan are state Superintendent of Public Instruction Tom Horne, Speaker of the House Kirk Adams and Senate President Bob Burns on behalf of the Legislature.

Hogan claims none of them have standing to challenge a lower court decision that the state is inadequately funding English learner education.

Now, the superintendent is a named defendant. The trial judge ordered the Legislature to pass a law and started fining the state when it didn’t.

To a nonlawyer, it is pretty Kafkaesque if someone can be sued or ordered to do something by a judge and not have the right to go to court and say: “Hey, wait a second! This ain’t right.”

The weirdest part of the case is that it’s stuck in a time warp. According to the trial judge, it’s still 2000, when the case was first decided.

Since then, Arizona voters have changed the system of educating English learners, requiring that they be taught in English rather than receive dual language instruction.

A task force has developed programs to do that. State aid for English language learners has been increased and a fund established to which schools can apply if that is insufficient to implement the new state approach.

And the federal government has since passed No Child Left Behind, which requires states to track the progress of English learners and imposes sanctions if they don’t advance.

Opponents claim this new state system also violates federal law because it considers available federal funds in determining additional state help and limits extra state funding to two years.

The technical legal issue is a recondite matter of when changed circumstances warrant vacating a previous court order.

The sensible thing would be to allow Arizona’s new system a chance to operate and see what happens. The early indications are promising.

The question is whether federal law permits the sensible thing.

Robert Robb, an Arizona Republic columnist, writes about public policy and politics in Arizona. E-mail: robert.robb@arizonarepublic.com

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