Arizona Attorney General Mark Brnovich

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Arizona Attorney General Mark Brnovich will discuss the latest issues regarding his office.

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. Arizona attorney general Mark Brnovich is in his first year as the state's chief legal officer. Same-sex adoptions, a controversial west-valley tribal casino and a whistle-blower complaint against APS and the Corporation Commission are among the issues facing the A.G.'s office. Joining us now is Arizona Attorney General Mark Brnovich. Good to see you again.

Mark Brnovich: Thank you for having me.

Ted Simons: How's the transition going?

Mark Brnovich: Excellent, excellent. I've been very fortunate and blessed I've been given this public trust and I'm a big believer that personnel is policy so we've brought in a lot of experienced folks with diverse backgrounds and we're hitting the ground running.

Ted Simons: A lot of the old regime still there, a lot of the old regime on different planes.

Mark Brnovich: A lot of folks have moved on. I thought it was important to have a fresh start in the attorney general's office. One of the things I talked a lot about when I was running is that the attorney general is -- you're held to a higher standard. You're representing the people of Arizona and I've had meetings with all of our individual divisions and I keep emphasizing we're not State Farm, we are the state of Arizona. We should take pride in that when I go to court and represent folks. I want to make sure that gets down to all the folks in our office.

Ted Simons: Let's get to some issues here starting with gay adoptions. What exactly did you tell child protective services? And/or whatever they're calling it these days. But what did you tell them regarding legally married same-sex couples and fostering and adopting?

Mark Brnovich: Well, you know, Ted, one of the things that when you're the attorney general for various state agencies, I'm limited as to what I can say because of attorney-client privilege. But let me talk broadly about this issue. We do know that the ninth circuit has ruled that same-sex marriages were legal here in the ninth circuit. We also know that the Supreme Court accepted certiorari that they were going to hear gay marriage cases. I think the most prudent course of action is where we have Arizona statutes for dealing with adoption that contain language, such as man and woman or there's preferences for when it comes to husband and wife when they adopt jointly. So those statutes don't necessarily provide a preference for someone who's quote/unquote married but they use terms like man and woman, husband and wife. I thought the best thing to do was let's wait to see the U.S. Supreme Court decides this issue, gives us some guidance. We've heard everything from are they going to do strict scrutiny when it comes to these cases? And so we don't know what's going to happen. I think we should wait.

Ted Simons: Some would say that waiting was discriminatory against certain married couples.

Mark Brnovich: It's not, Ted, because anybody, even a gay person, can adopt someone right now. When the statute set forth various preferences, there are preferences, for example, a husband and wife over a single person. And so the question becomes how do you interpret when a statute that uses plain language such as husband and wife or man and woman how do you interpret that in light of what is going on in the same sex marriage debate and I think the most prudent action is the attorney general what we tell our voters and what we obviously should go back to is what does the statute say, what does the statute say. And we know the Supreme Court has heard arguments on this case and it should provide us some guidance on how we should look and interpret those statutes moving forward.

Ted Simons: So those who would say though that denying those adoptions would lead to a violation of the equal protection clause, you say?

Mark Brnovich: I would say that there's language in our state statutes that talk about adoption preferences and people adopting jointly and they refer to a man and woman and a husband and wife. And right now we know the U.S. Supreme Court is hearing arguments on this issue and they will, I think, give us some guidance as to how we should interpret those, because you mention equal protection, that's one of the arguments being made, but you know there's other folks that say look, less than a decade ago Arizona voters approved a Constitutional Amendment that defines marriage for example as a man and a woman we also know that there's been like a Justice Kennedy saying this is up to the individual states to decide and maybe under the Constitution, State would have to recognize same-sex marriages under the full faith and credit clause, but that doesn't necessarily mean that they would have to allow them in this state. Which would of course then would create some issues and confusions as to how do you do those preferences then. What does that mean?

Ted Simons: That compromise, recognize situation I think has a lot of folks worried that the court might go that way, although I'm not quite sure it will. But the governor has said, basically to heck with prudence we want these kids adopted, we want families, and pretty much overturned your advice. Your thoughts on that.

Mark Brnovich: When I ran and I have consistently maintained and told my lawyers I am not a policymaker. We do, what does the law say, Attorney General Corbin was in office, used to talk about what does the law say, we always go back to the law. I can make recommendations without getting any specific attorney-client issues, I can make those recommendations, but ultimately I'm not a policymaker.

Ted Simons: Do you agree with the governor's decision?

Mark Brnovich: As I said I think the most prudent course of action in this instance with a case pending before the United States Supreme Court on this important issue, I think the most prudent course of action is to wait until the Supreme Court makes its decision and that will provide us some guidance and some instruction on how we interpret the statutes and whether a statutory fix is necessary or not necessary.

Ted Simons: Ok so not necessarily agreeing with the governor on this one?

Mark Brnovich: I think I said what I said.

Ted Simons: Do you have a good working relationship with the governor?

Mark Brnovich: I do have a great relationship with the governor, in fact we just had lunch last week and you know I'd like to say that if someone agrees with you eight out of 10 times they're your friend and if someone agrees with you 10 out of 10 times they're probably your psychiatrist because no one agrees with everyone all of the time, but we have a very good relationship and Kirk Adams is his Chief of Staff and I've known Kirk for a while, so we have a very good relationship.

Ted Simons: I ask because during the legislative session the governor wanted, at the last minute it seemed like, a new state inspector general, we're talking badge, police power, subpoena authority the whole nine yards, you said that was unnecessary.

Mark Brnovich: I think their question is does Arizona want or need some law enforcement subpoena powers that can investigate fraud and corruption, well the answer is and we have somebody, it's the attorney general and every four years Arizonans make a decision whether they agree with what that person is doing or what they're not doing and so maybe I'm a little old school on this stuff Ted, but I believe that government shouldn't be in the business of trying to find solutions to problems, excuse me solutions to problems that may not exist. I think at the end of the day I have to say that we have an auditor general in the state and I chaired governor Brewer's commission on p[privatization and efficiency, nobody wants to protect hardworking taxpayers more than I do. I understand that, I just don't think that having an inspector general, at least the way the legislation was written, is the right approach or the right model.

Ted Simons: The governor says that Arizona needs someone to ask the tough questions and someone to watch out for the taxpayer. And he thinks that that's necessary regardless of the A.G.'s position of the A.G.'s office. How do you respond to that?

Mark Brnovich: As you know Ted Arizona is different than many, if not most, states. And other states - you know in Arizona the agency directors for example are not mayor protected so if the governor is concerned about what a director is or isn't doing, he has the ability to call up that person and say, hey why are you spending money this way? Why are you doing that? When they do the budget appropriation the governor's office is very involved in that and so I'm all for oversight and that's why we have an auditor general. When it comes to fraud and corruption we have an attorney general that has subpoena power, police power to investigate those matters which we've done even before I inherited that office, other attorney generals have done. So I think there's always a reluctance to increase the size and the scope of government, especially when it comes to somebody that has subpoena powers or law enforcement functions. I felt like this is something that our office is doing and between us and the auditor general if you're worried about protecting the taxpayers there's other ways to do that.

Ted Simons: There are those who say there are businesses doing business with the state that are taking advantage of the taxpayers and we just need to step up on this. Is there attorney general's office ready to step up on this?

Mark Brnovich: We're protecting consumers since even the brief time that I've been in office, you've seen some of the things that we've done, whether it's settlement with rooftop solar companies, going after bad mechanics, we are willing to go out there and investigate if necessary through civil procedures or criminal procedures get to the bottom of people that are taking advantage of the hard-answering taxpayers. So I would say show us where that's it or what's going on and we'll get to the bottom of it.

Ted Simons: And you can do that without an inspector general getting in the way.

Mark Brnovich: That would be my proposal, yes.

Ted Simons: All right. The probe, the investigation of aps, this is a whistleblower complaint. Obviously, you said you're going to recuse yourself regarding this case but you allowed your staff to continue investigating. Why?

Mark Brnovich: You know, what we know that historically has someone that's been a prosecutor, I have never asked someone when I've prosecuted a case what their background is, what their political affiliation is, whether they're conservative or democrat, Republican, it's really irrelevant. The only reason why in this instance I thought it was maybe a good idea to take myself back and wall myself out from that is because there have been some articles written about it and I wanted to avoid that appearance of impropriety. Phoenix, this is a big city but a small town, there's always some interconnectedness between folks and people know each other but that doesn't mean you can't be fair and objective and impartial. Always comes down to what the statutes say, we're going to follow the law and obey the law. And voters can vote you out of office but I thought it was important to wall myself off and I brought in Don Conrad and John Lopez who was at the U.S. attorney's office for years and he's my solicitor general and I delegated the authority into that investigation to them. I walled myself off so I'm not involved in it.

Ted Simons: But aps donated 400 some odd thousand dollars to the republican attorney association that launched ads against your opponent during your campaign. Why not send this out to another agency?

Mark Brnovich: First of all, none of that money ever went to me or my campaign. And so there isn't an ethical conflict. If you look at the ethical rules of prosecutors, there isn't an ethical conflict. What we did, we did out of an abundance of caution. People can start creating conflicts by trying to maybe open an investigation or donate to a campaign. Even with some of the stuff that we see that's going on with the sheriff in federal court, if someone investigated someone, does that create a conflict? And you can have these self-fulfilling prophecies where people could do things that would force you by that logic to recuse yourself from cases where you are the best person and the best office to do it. At the end of the day, our office is charged, this is what we do, we investigate corruption. We investigate these violations. And we are the best people, we have the best resources, we have the best help to do it.

Ted Simons: Do you understand why some see this as questionable?

Mark Brnovich: Frankly, I don't I think it's questionable because at the end of the day, I have walled myself off from being involved in it out of an abundance of caution but even there, I think if you talk to anybody that's an ethics expert or someone that's involved in this, there's nothing in the black letter law that would prohibit us from moving forward on that. I did it out of an abundance of caution and there's so many things going on in this state right now, that to me that's water under the bridge right now, and it's really, you know, what we've got things going on with the casinos and things going on with immigration and there's so many other important issues facing the state, let's not get into the weeds on that.

Ted Simons: I like the weeds sometimes.

Mark Brnovich: Are we going to talk about marijuana now?

Ted Simons: No, no, no. We are not. But I do want to mention the casino because just today now, we had the Senate subcommittee deciding that they want to go ahead and try to stop this thing. Your thoughts on efforts to stop the tribal casino near Glendale.

Mark Brnovich: As you know, I was the former Arizona department of gaming director and as a federal prosecutor I worked a lot in Indian country and on gaming-related matters. I understand this issue very, very well and in 2002, Arizona voters were promised the gaming, the gambling was going to be limited and well regulated and what the nation has done by buying land, more than 100 miles from their tribal capital, they're basically blowing up the tribal compacts. We were asked to provide legal advice to an agency which we do. At the end of the day, this is a policy decision for the governor and the Arizona department of gaming, how we want to proceed but I believe they have a legally defensible position, and I think it's an important position because we know that the nation had made promises regarding, you know, they weren't going to build any casinos here, and then they secretly bought land with a dummy corporation and they tricked the voters in 2002 as to their real intentions.

Ted Simons: And yet they are winning at every turn when they hit the courts. They're basically saying that the compact doesn't specifically prohibit new casinos.

Mark Brnovich: And you are partly right. They have won but there is a case right now with that very issue that's pending before the ninth circuit Court of Appeals. We should hear back. But at the end of the day let's remember, if you go back in time, the federal government flooded, damaged tribal land in the 1950s. In the 1980s, they gave them money to buy land before the act was passed and what we're talking about here is Indian country. Once this land is taken into trust, it's like the land of a sovereign nation. It creates all sorts of issues even for law enforcement. There's a high school across the street. What happens if there's an emergency? What fire department is going to respond? What if someone is arrested? So there's all sorts of issues that I think when it comes to public safety, you know, besides the basic issue about how they went about getting this but when you have a tribe building a casino 100 miles from their existing tribal lands, I think it creates problems.

Ted Simons: Do you think they engaged in fraud?

Mark Brnovich: I think that they definitely made misrepresentations and if you look at what they did, promises were made in 2002, when that compact was put before the voters. Promises they made not only to the people of Arizona but promises they made to their fellow tribal members, and I think that's one of the reasons why their sister tribes, tribes like Salt River, also Gila River are involved in litigation as well because they feel like they've been betrayed by the sister tribes.

Ted Simons: Last question on this, do you think that government gives them money, they use the money to buy the land, the land is now tribal land, they can't do what they want to do with it?

Mark Brnovich: Arizona voters were told that there was not going to be any more casinos here in the urban area other than what was there at the time and the nation is blowing it up. And I think the big question is going to become that people are going to start asking and tribes, they own other patches of land here in Maricopa County and Arizona. What happens? They can build up to four new casinos. Are they going to build a casino somewhere else? And if the tribes are going to start building casinos, acquiring land, taking it into trust and building new casinos, the question is going to get asked, why can't horse tracks happen there?

Ted Simons: And that question will be asked, especially if they keep winning in court, except for that appeal. It's good to see you again.

Mark Brnovich: Thank you so much, thank you very much.

Mark Brnovich:Attorney General, Arizona;

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