                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


            STATE OF ARIZONA, ex rel. MARK BRNOVICH,
               ATTORNEY GENERAL, Plaintiff/Appellant,

                                        v.

                     ARIZONA BOARD OF REGENTS,
                          Defendant/Appellee.

                             No. 1 CA-CV 18-0420
                               FILED 8-20-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-012115
                  The Honorable Connie Contes, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Brunn W. Roysden, III; Oramel H. Skinner; Evan G. Daniels,
Drew C. Ensign, Robert J. Makar, Dustin D. Romney, Katherine H. Jessen
Counsel for Plaintiff/Appellant

Perkins Coie, LLP, Phoenix
By Paul F. Eckstein, Joel W. Nomkin, Shane R. Swindle,
Thomas D. Ryerson, Austin Yost
Counsel for Defendant/Appellee
                            STATE v. AZ REGENTS
                             Decision of the Court



                        MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.


M O R S E, Judge:

¶1           The State of Arizona appeals the superior court's May 22, 2018
judgment dismissing the State's complaint with prejudice. For the following
reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2              In September 2017, the State filed a complaint against the
Arizona Board of Regents ("ABOR") for declaratory, injunctive, and special
action relief. The complaint asserted five counts of violations of Article 11,
Section 6 of the Arizona Constitution ("Counts I-V"), and one count of
violation of Arizona Revised Statutes ("A.R.S.") sections 35-143 and -212
("Count VI"). Specifically, Counts I-V alleged that ABOR's tuition-setting
policies and practices violated the Arizona Constitution's requirement that
"the instruction furnished [at the university and all other state educational
institutions] . . . be as nearly free as possible." Ariz. Const. art. 11, § 6. Count
VI alleged ABOR had, by directing or otherwise permitting the universities
in question to offer in-state tuition to students who were not "lawfully
present" for purposes of eligibility for in-state tuition or other state or local
public benefits, violated A.R.S. §§ 15-1803(B) and -1825(A), failed to collect
monies accruing to it or the State as required by A.R.S. § 25-143, and caused
the illegal payment of public monies in violation of A.R.S. § 35-212.

¶3             ABOR filed three separate motions to dismiss, asserting that:
(1) the Attorney General lacked authority to initiate the lawsuit; (2) Counts
I-V presented nonjusticiable political questions; and (3) ABOR was entitled
to legislative immunity because the tuition-setting policies that formed the
basis of the State's complaint were legislative actions. The State amended
its complaint in January 2018 to seek recovery of illegally spent public
monies in addition to the prospective relief sought in the original
complaint.




                                         2
                           STATE v. AZ REGENTS
                            Decision of the Court

¶4            After oral argument on the motions, the superior court
granted ABOR's first motion to dismiss, concluding the State lacked
authority to initiate the lawsuit. After receiving briefing on whether the
complaint should be dismissed with or without prejudice, the court
dismissed the State's first amended complaint with prejudice. It did not
award fees to either party.

¶5            The State timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).

                                DISCUSSION

¶6            The State argues the superior court erred by: (1) granting the
Board's first motion to dismiss; and (2) dismissing the first amended
complaint with prejudice. For the following reasons, we affirm.

I.     Standard of Review

¶7             We review dismissals for lack of standing de novo.1 Judson C.
Ball Revocable Tr. v. Phx. Orchard Grp. I, L.P., 245 Ariz. 519, 521-22, ¶ 5 (App.
2018). We also review interpretations of statutes de novo. Glazer v. State,
244 Ariz. 612, 614, ¶ 8 (2018).

II.    The State's Request for Injunctive Relief, as It Relates to Count VI,
       Is Moot.

¶8             First, we must address ABOR's contention that the State's
request for injunctive relief relating to Count VI is moot. We agree that the
relief sought is moot.

¶9            "This Court generally declines to address moot issues as a
policy of judicial restraint," but we "will make an exception . . . for matters
of public importance or those capable of repetition yet evading review."
Prutch v. Town of Quartzsite, 231 Ariz. 431, 435, ¶ 10 (App. 2013). "[A] case

1      ABOR's first motion to dismiss, its reply in support of that motion,
and the court's final judgment did not specify which section of Arizona Rule
of Civil Procedure ("Rule") 12(b) was the basis of the dismissal. However,
our supreme court has reviewed similar motions to dismiss as raising issues
of standing. See Ariz. State Land Dep't v. McFate, 87 Ariz. 139, 141, 148 (1960)
(concluding Attorney General lacked standing to initiate action where
Attorney General lacked statutory authorization). We accordingly review
the superior court's dismissal as one for lack of standing.


                                       3
                          STATE v. AZ REGENTS
                           Decision of the Court

becomes moot when an event occurs which would cause the outcome of the
appeal to have no practical effect on the parties." BT Capital, LLC v. TD Serv.
Co. of Ariz., 229 Ariz. 299, 300-01, ¶ 9 (2012) (quoting Sedona Private Prop.
Owners Ass'n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5 (App. 1998)).
"[V]oluntary cessation of the questioned practices will not automatically
moot the injunctive remedy." State ex rel. Babbitt v. Goodyear Tire & Rubber
Co., 128 Ariz. 483, 486 (App. 1981). "Mootness exists in the issuance of
injunctions only where events make it absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur." Id. The
court must look at "factors which indicate proof of likelihood to engage in
future violations," including "past violations, the involuntary cessation of
these violations, and their continuance in disregard of the lawsuit." Id.
"[T]he burden of proof . . . is upon the plaintiff to show a likelihood that the
defendant will in the future engage in the conduct sought to be enjoined."
Id. at 487.

¶10            Here, the State sought injunctive relief to "prevent[] and
enjoin[] ABOR from violating the Arizona Constitution and Arizona law"
and "require[] ABOR to fulfill its duties as required by Arizona law." As
both parties recognize, while this case was being litigated, ABOR
voluntarily ceased its policy of offering in-state tuition to those without
lawful immigration status. See Ariz. Bd. of Regents, Statement from ABOR
Chair Bill Ridenour Regarding Arizona Supreme Court Decision in
MCCCD Case Prohibiting In-State Tuition for DACA Students (Apr. 9,
2018),     https://www.azregents.edu/sites/default/files/news-releases/
Statement from ABOR Chair Bill Ridenour Regarding Arizona Supreme
Court Decision in DACA Case_April 9 2018.pdf; see also State ex rel. Brnovich
v. Maricopa Cty. Comty. Coll. Dist. Bd., 243 Ariz. 539 (2018). The State has not
addressed any of the above-mentioned factors in support of their argument
that the issue is not moot. Because ABOR has voluntarily ceased the
objected-to conduct and the State has not shown "a likelihood that [ABOR]
will in the future engage in the conduct sought to be enjoined," see Goodyear,
128 Ariz. at 487, we conclude the State's request for injunctive relief as it
relates to Count VI is moot.

III.   The Superior Court Did Not Err by Granting the Board's First
       Motion to Dismiss.

¶11           Despite our conclusion that the injunctive relief sought by the
State relating to Count VI is moot, we may still address the State's
arguments regarding the motion to dismiss because the State also sought
declaratory and special action relief in its first amended complaint. See



                                       4
                           STATE v. AZ REGENTS
                            Decision of the Court

Prutch, 231 Ariz. at 435, ¶ 11 (noting that separate non-moot claim "is still
justiciable and the remedy still available").

¶12             The State asserts: (1) the court erred by concluding as a matter
of law that the Attorney General lacked authority to bring claims pursuant
to A.R.S. § 35-212; (2) A.R.S. § 41-193(A)(1)-(2) provides an independent
basis for bringing all six counts and McFate should be overruled;2 and (3)
the dismissal cannot be affirmed as to Counts I-V on alternative grounds.
Because we affirm the superior court's dismissal for lack of subject-matter
jurisdiction, we need not address the remaining two arguments. See Fappani
v. Bratton, 243 Ariz. 306, 309, ¶ 8 (App. 2017) (stating we will affirm a
dismissal if it is correct for any reason).

¶13            The Attorney General "may initiate proceedings on behalf of
the State . . . but these instances are dependent upon specific statutory
grants of power." McFate, 87 Ariz. at 144; see also State ex rel. Woods v. Block,
189 Ariz. 269, 272 (1997) ("In Arizona, the Attorney General has no common
law powers; whatever powers he possesses must be found in the Arizona
Constitution or the Arizona statutes.") (internal quotation marks omitted).
Section 35-212 authorizes the Attorney General to "bring an action . . . to . . .
[e]njoin the illegal payment of public monies" and "[r]ecover illegally paid
public monies." A.R.S. § 35-212(A).

¶14           The parties dispute the meaning of "payment" in A.R.S. § 35-
212. The State asserts that because ABOR is responsible for expending
public money for instruction and in-state tuition is below the cost of
providing instruction, ABOR necessarily makes payments of public monies
to cover the difference between in-state tuition and the cost of instruction.
It argues such payments are equivalent to subsidies, and it cites McClead v.
Pima County, 174 Ariz. 348 (App. 1992), for the proposition that subsidies
qualify as payments in the context of A.R.S. § 35-212.



2       ABOR argues the State has waived this argument because the State
failed to raise it in the superior court. We disagree because the State raised
the issue in its response to the motions to dismiss. The State concedes that
McFate controls and acknowledges that this Court cannot overrule McFate.
See State v. Gulli, 242 Ariz. 18, 22, ¶ 21 (App. 2017) (recognizing that this
Court is "bound by the decisions of our supreme court and has no authority
to overrule or disregard them"). The State indicates that it intends to raise
these arguments in a petition to the Arizona Supreme Court. See State v.
Hickman, 205 Ariz. 192, 200-01, ¶¶ 37-38 (2003) (discussing factors our
supreme court considers when overruling precedent).


                                       5
                           STATE v. AZ REGENTS
                            Decision of the Court

¶15            We agree with ABOR that collecting tuition does not
constitute a "payment" under A.R.S. § 35-212. The statute cited by the State
in the first amended complaint, A.R.S. § 35-143, states that "amounts due
any budget unit shall be collected" and that "[a]ny person or officer who
neglects the collection of such fees or monies shall be liable to the state, both
personally and on his bond" (emphases added). This Court has held that
"the collection of funds . . . does not establish any identifiable payment that
may be prevented or recovered." Biggs v. Cooper, 234 Ariz. 515, 522, ¶ 19
(App. 2014), aff'd in part, vacated in part on other grounds, 236 Ariz. 415 (2014).

¶16           The State attempts to distinguish Biggs by asserting that
A.R.S. §§ 15-1626(A)(13)3 and -16644 provide ABOR an "express
expenditure power," unlike in Biggs. However, we conclude that this is an
irrelevant distinction, because the State's complaint did not challenge
ABOR's exercise of that power through payments to the students in
question. Additionally, because the State's complaint referred only to
ABOR's collection of fees or monies, rather than to any identifiable
payment, the State's citation to McClead, 174 Ariz. 348, is inapposite.
McClead addressed monthly pension benefits paid to state employees,
which, as this Court recognized, were "expenditures" by the state pension
fund manager. Id. at 351-52. Here, the State identifies no similar
expenditure. Because the State did not identify any qualifying "payment"
under A.R.S. § 35-212, and the complaint did not cite to any other statute
providing the Attorney General with authority to commence the suit, the
superior court did not err by dismissing the first amended complaint.

IV.    The Superior Court Did Not Err by Dismissing the Complaint with
       Prejudice.

¶17         The State argues the superior court erred by dismissing the
first amended complaint with prejudice because: (1) the first motion to



3      Providing that ABOR "shall . . . [a]dopt annually an operating budget
for each university equal to the sum of appropriated general fund monies
and the amount of tuition and fees approved by [ABOR] and allocated to
each university operating budget."

4     Providing that "[a]ll monies for the use and benefit of an institution
under its jurisdiction shall be expended under the direction and control of
[ABOR] for the support and maintenance of such institution, buildings and
grounds, and for any other purpose the board deems expedient if not
inconsistent with provisions of any appropriations."


                                        6
                           STATE v. AZ REGENTS
                            Decision of the Court

dismiss raised only jurisdictional challenges; and (2) the superior court did
not reach the merits of the claims alleged in the complaint.

¶18            "[A]ll involuntary dismissals are with prejudice unless
otherwise specified." Phillips v. Ariz. Bd. of Regents, 123 Ariz. 596, 598 (1979).
Dismissals for lack of jurisdiction, improper venue, or failure to join a party
are exceptions to this rule. Id.; Ariz. R. Civ. P. 41(b). However, dismissal
with prejudice is warranted if amendment of the complaint would not cure
its defects. See Wigglesworth v. Mauldin, 195 Ariz. 432, 439, ¶¶ 26-27 (App.
1999) (affirming dismissal with prejudice where the court "[could ]not
imagine that an amendment could cure the legal defects of [plaintiff's]
complaint").

¶19           Although, as the State argues, the court dismissed the first
amended complaint for lack of jurisdiction, see Nat'l Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 255 (1994) ("Standing represents a jurisdiction
requirement . . . ."), and therefore dismissal with prejudice was not required
by Rule 41(b), we affirm the dismissal with prejudice. As ABOR argues, no
additional amendment could cure the defects of the complaint. Section 35-
212 does not provide a basis for the State's complaint, as discussed supra in
paragraph 15, and, as the State recognizes, the use of A.R.S. § 41-193(A)(1)-
(2) as an independent basis for bringing the complaint is precluded by
McFate. McFate, 87 Ariz. at 145-46. Amendment would accordingly be
futile, and the superior court did not err by dismissing the first amended
complaint with prejudice.

V.     Attorneys' Fees and Costs

¶20          The State requests its reasonable attorneys' fees and costs
pursuant to A.R.S. §§ 12-348.01 and 35-212. ABOR also requests its fees
pursuant to A.R.S. § 12-348.01. Because ABOR is "the successful party in
the action," A.R.S. § 12-348.01, we award its fees and costs upon its
successful compliance with Arizona Rule of Civil Appellate Procedure 21.

                                CONCLUSION

¶21          For the foregoing reasons, we affirm the superior court's May
22, 2018 judgment dismissing the State's complaint with prejudice.




                                        7
                          STATE v. AZ REGENTS
    Morse, J., joined by Campbell, J., and Cruz, J., Specially Concurring

M O R S E, Judge, joined by Presiding Judge Campbell and Judge Cruz,
specially concurring:

¶22           As noted above, the State has conceded that its proposed
interpretation of A.R.S. § 41-193(A)(2) is foreclosed by McFate, 87 Ariz. at
145-46. We concur in this decision because we are bound by McFate's
holding that the authority to "prosecute" actions under A.R.S. § 41-193(A)(2)
does not authorize the Attorney General to commence or initiate actions.
We write separately, however, because McFate's interpretation of
"prosecute" in A.R.S. § 41-193(A)(2) appears to be flawed. The decision
overlooks substantial evidence of the plain meaning of the phrase in 1953
when the legislature amended the 1939 Code 4-607(a) to authorize the
Attorney General to "prosecute and defend" actions, and adopts an
interpretation that ascribes different meanings to "prosecute" within the
same sentence.

¶23             The McFate court acknowledged that "the term 'prosecute'
may in some situations, especially with reference to criminal actions,
include the power to commence a proceeding," but found that policy-based
concerns related to the role of the Attorney General compelled a different
interpretation for A.R.S. § 41-193(A)(2). 87 Ariz. at 145-46. It is up to the
Arizona Supreme Court to determine whether those concerns continue to
support McFate's interpretation and whether legislative acquiescence and
stare decisis caution against overruling McFate. We separately concur only
to point out that common usage before and around the time of the 1953
amendment suggests that the term "prosecute" included civil actions and
contemplated both the initiation and the continuation of legal proceedings.
See Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 526 (2009)
(interpreting a statute based on the understanding of terms at the time of
enactment).

¶24            Early Arizona law contains more than one example of the
broad construction of "prosecute" encompassing the power to initiate and
pursue non-criminal legal remedies. As early as 1909, Arizona territorial
law provided that foreign corporations enjoyed the same rights as domestic
corporations "to prosecute and defend, and to appear, especially and
generally, in any action in any court." Work v. United Globe Mines, 12 Ariz.
339, 344 (1909) (quoting par. 913, Civ. Code Ariz. 1901). In 1937, Arizona
law authorized the Attorney General to "prosecute and defend in the name
of the State all actions necessary to carry out the provisions of the highway
code." State ex rel. Sullivan v. Price, 49 Ariz. 19, 21 (1937). More significantly,
the Enabling Act, through which Arizona was admitted to the United
States, provides that it is "the duty of the Attorney-General of the United


                                        8
                          STATE v. AZ REGENTS
    Morse, J., joined by Campbell, J., and Cruz, J., Specially Concurring

States to prosecute, in the name of the United States and in its courts, such
proceedings at law or in equity as may from time to time be necessary and
appropriate to enforce" the public-land provisions of the Enabling Act.
Arizona Enabling Act, ch. 310, 36 Stat. 557, 568-79 (1910).5 In all three of
these examples, it cannot reasonably be argued that the authority to
"prosecute" was limited to criminal matters or that there was no
concomitant authority to initiate the actions for which the statutes authorize
prosecution.

¶25            Other contemporaneous usage runs contrary to the narrow
interpretation of "prosecute" applied by the court in McFate. In Board of
Regents of University and State Colleges v. Frohmiller, 69 Ariz. 50 (1949), the
Arizona Supreme Court used the term "prosecute" to indicate the ability to
both initiate and pursue litigation. 69 Ariz. at 54. The court rejected the
State Treasurer's argument that the Board of Regents could not "prosecute"
a claim because "[t]he contention that the board of regents is not a party so
beneficially interested as to be able to maintain this action is without merit."
Id. The Frohmiller court also cited Barry v. Phoenix Union High School, 67
Ariz. 384 (1948) for the proposition that "a high school district could
prosecute mandamus proceeding against a county school superintendent
to compel the issuance of a warrant." Id. In both instances, the court used
the term "prosecute" to describe a litigant's ability to initiate and pursue
legal actions.

¶26            Moreover, Arizona cases prior to 1953, as they do today,
referred to Black's Law Dictionary for guidance in interpreting legal terms
in statutes. E.g., Shumway v. Farley, 68 Ariz. 159, 165 (1949) (defining
"wilfully" in statute); State Bd. of Barber Examiners v. Walker, 67 Ariz. 156, 167
(1948) (defining "conveyance" in statute).                And at least one
contemporaneous Arizona case cited to Black's Law Dictionary (3d ed.) in
concluding that the word "prosecute" could refer to both criminal and civil
matters. State v. Dickens, 66 Ariz. 86, 92 (1947). The definition of "prosecute"
and "prosecution" in Black's Law Dictionary was unchanged between
editions published in 1933 and 1951, and provided that prosecution




5 The Enabling Act was accepted and incorporated into the Arizona
Constitution, art. 20, par. 12, and our supreme court has referred to the
public land provisions of the Enabling Act as "fundamental and paramount
law." Murphy v. State, 65 Ariz. 338, 345 (1947).




                                        9
                            STATE v. AZ REGENTS
      Morse, J., joined by Campbell, J., and Cruz, J., Specially Concurring

encompasses both the initiation and continuation of criminal and civil
proceedings:

         PROSECUTE. To follow up; to carry on an action or other
         judicial proceeding; to proceed against a person criminally.
         To "prosecute" an action is not merely to commence it, but
         includes following it to an ultimate conclusion.

         PROSECUTION. . . . The term is also frequently used
         respecting civil litigation, and includes every step in action,
         from its commencement to its final determination.

Black's Law Dictionary 1450-51 (3d ed. 1933); Black's Law Dictionary 1385
(4th ed. 1951) (citations omitted).

¶27            In light of these authorities, the counter examples cited by
McFate are not particularly persuasive. McFate relied on two cases, W.T.
Rawleigh Co. v. Spencer, 58 Ariz. 182, 185-86 (1941), and Forbach v. Steinfeld,
34 Ariz. 519, 527-28 (1928), for the proposition that the "distinction between
the terms 'commence' and 'prosecute' has been noted by this Court."
McFate, 87 Ariz. at 146. However, in both cases the Arizona Supreme Court
simply noted that the use of the words "commenced and prosecuted" in a
statute of limitation was necessary because those phrases "are not
synonymous," such that if an "action is commenced within the six-year
period of limitation and thereafter prosecuted 'with reasonable diligence' it
should not be dismissed." W.T. Rawleigh Co., 58 Ariz. at 185 (quoting
Forbach, 34 Ariz. at 527). Because statutes of limitation must provide a
deadline before which litigation must commence, even if the prosecution of
that litigation continues afterwards, adding the word "commence" before
"prosecute" simply provides two necessary measuring points that could not
be accomplished by the use of either word alone. These cases do not stand
for the proposition that the authority to prosecute litigation does not
include the authority to initiate litigation.

¶28            The McFate court also relied on Arizona statutes that
authorized the State Land Department to "commence, prosecute, and
defend" actions, and authorized the Attorney General to "bring" or
"institute" actions. McFate, 87 Ariz. at 146. The court reasoned that "where
the legislature intended to authorize the Attorney General to initiate
proceedings, it has so provided in clear terms." Id.

¶29             The "bring" statute cited by McFate provides as follows:




                                       10
                         STATE v. AZ REGENTS
   Morse, J., joined by Campbell, J., and Cruz, J., Specially Concurring

       A.     An action may be brought in the supreme court by the
       attorney general in the name of the state upon his relation,
       upon his own information or upon the verified complaint of
       any person, in cases where the supreme court has jurisdiction,
       or otherwise in the superior court of the county which has
       jurisdiction, against any person who usurps, intrudes into or
       unlawfully holds or exercises any public office or any
       franchise within this state.

       B.    The attorney general shall bring the action when he has
       reason to believe that any such office or franchise is being
       usurped, intruded into or unlawfully held or exercised.

A.R.S. § 12-2041.

¶30         The "institute" statute cited in McFate provides that the
Attorney General may "institute action in the superior court of the county
in which the property is located for recovery of escheats." A.R.S. § 41-
193(C).

¶31            Because both statutes address where such actions should be
filed, and not only by whom they may be pursued, it makes sense for the
legislation to focus on the initiation of the action. Moreover, neither statute
includes the word "prosecute," so it is difficult to discern how those laws
narrow the meaning of "prosecute" in a separate statute. Finally, if one
applied the narrowing logic applied under McFate, the grant of authority
only to "bring" or "institute" an action in those statutes would imply that
the Attorney General lacks authority to continue to prosecute the action
once it was filed. Of course, the opposite construction is the more rational—
the authority to "bring" or "institute" an action, just like the authority to
"prosecute" an action, contemplates both the initiation and completion of
proceedings.

¶32            The remaining statute discussed by McFate, 87 Ariz. at 146,
involved a statutory grant of authority to the State Land Department to
"commence, prosecute and defend all actions and proceedings [related to
state lands]. Actions shall be commenced and prosecuted at the request of
the department by the attorney general, a county attorney or a special
counsel under the direction of the attorney general." A.R.S. § 37-102(C).
The phrasing in this statute could support the narrow construction of
"prosecute" suggested by McFate, or it could be explained by the context of
delegating legal authority to the State Land Department, a county attorney,
or special counsel, who would not otherwise have the broad legal authority



                                      11
                         STATE v. AZ REGENTS
   Morse, J., joined by Campbell, J., and Cruz, J., Specially Concurring

conferred on the Attorney General. Regardless, other than providing an
example of the legislature including both "commence" and "prosecute," it
does not negate the contrary examples above. See supra ¶ 24.

¶33           Finally, the word "prosecute" in Arizona law should be
construed consistently. See Parrot v. DaimlerChrysler Corp., 212 Ariz. 255,
258, ¶ 19 (2006) ("We presume that Congress uses terms consistently.").
There is no countervailing textual reason to apply a narrow construction of
"prosecute" in A.R.S. § 41-193(A)(2) solely as it applies to the authority of
the Attorney General while adopting a broader construction as applied to
the Governor's authority. Contra McFate, 87 Ariz. at 148 ("The authority
here claimed by the Attorney General has been delegated by our
Constitution and statutes to the Governor."). To the contrary, in light of the
Enabling Act and other sources discussed above, it appears that "prosecute"
in A.R.S. § 41-193(A)(2) would have been understood by the legislature in
1953 to include both the initiation and pursuit of proceedings, whether they
be at "the direction of the governor or when deemed necessary by the
attorney general." A.R.S. § 41-193(A)(2).




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




                                        12
