sovereign immunity by recreating itself as a corporation and acting beyond its granted powers.
- To protect the people and the legislative power, the Legislature should request or file
appropriate legal action, unless the Board is willing to abandon the Phoenix transaction or
seek legislative approval of a restructured transaction.
Due to my concerns about the Phoenix transaction, I have recommended to all of you that the
Legislature seek the initiation of appropriate legal action. I am willing to reconsider this
recommendation if the Board:
a. Repairs its encroachment of the legislative power by seeking legislative approval of the
Phoenix transaction; and
b. Restructures the Phoenix transaction so that it does not involve the state creation of a
corporation and does not involve what is essentially state ownership and operation of a
private institution.
If the Board proves unwilling to do either of the above, I advise the Legislature or its agents to request
that the Attorney General file an action in the nature of quo warranto under I.C. § 6-602.
"Quo warranto" means "by what authority."5 The action may be brought by the Attorney General
against a party that has abused, misused, or usurped a corporate franchise.60 I believe an action in the
nature of quo warranto should be brought: (1) against the State Board of Education in its corporate
capacity as the Board of Regents of the University of Idaho, for the reason that it has acted beyond the
scope of its charter; and (2) against Four Three Education for the purpose of cancelling, revoking, or
nullifying its incorporation based on its unconstitutional and unlawful formation.
If the Attorney General refuses to bring the action, then I recommend that the Legislature or its agents
retain private counsel experienced in civil litigation to advise the Legislature or its agents of its options.
One possibility would include requesting a writ of mandamus from the Idaho Supreme Court ordering
the Attorney General to file an action in the nature of quo warranto. Another possibility would be for the
Legislature's agents to apply with the district court for leave to file a quo wan-anto action on behalf of
the people. Other forms of relief might be available as well.