146 P.3d 1016 (Ariz.App. Div. 1 2006), 1 CA-CV 04-0250, Kromko v. Arizona Bd. of Regents

Docket Nº:1 CA-CV 04-0250.
Citation:146 P.3d 1016, 213 Ariz. 607
Party Name:John KROMKO; Rachel Wilson; Adrian Duran; Sam Brown, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants, v. ARIZONA BOARD OF REGENTS, a constitutionally and legally established entity of the State of Arizona, and the State of Arizona, Defendants-Appellees.
Case Date:November 14, 2006
Court:Court of Appeals of Arizona
 
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146 P.3d 1016 (Ariz.App. Div. 1 2006)

213 Ariz. 607

John KROMKO; Rachel Wilson; Adrian Duran; Sam Brown, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants,

v.

ARIZONA BOARD OF REGENTS, a constitutionally and legally established entity of the State of Arizona, and the State of Arizona, Defendants-Appellees.

No. 1 CA-CV 04-0250.

Court of Appeals of Arizona, First Division, Department B

Nov. 14, 2006

Review Granted April 17, 2007.

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[Copyrighted Material Omitted]

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Paul Gattone By Paul Gattone, Tucson, Attorneys for Plaintiffs-Appellants.

Terry Goddard, Attorney General By Bruce L. Skolnik, Assistant Attorney General, Daniel P. Schaack, Assistant Attorney General, Phoenix, Attorneys for Defendants-Appellees.

[213 Ariz. 609] OPINION

PORTLEY, Judge.

¶ 1 The question on appeal is whether the trial court erred by dismissing the complaint filed by four students from the University of Arizona who challenged the role of the Arizona Legislature and the Arizona Board of Regents ("Board") 1 that led to the nearly forty percent tuition increase for the 2003-2004 academic year. Because we find that the trial court erred in dismissing the claims against the Board, we reverse that portion of the court's order and remand the case.

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[213 Ariz. 610] FACTS AND PROCEDURAL BACKGROUND

¶ 2 During March 2003, the Board approved a 39.1% tuition increase for students enrolled in the state's university system. The Legislature kept the university system funding at the 2003 levels in its 2004 budget.

¶ 3 The students, after filing a notice of claim pursuant to A.R.S. § 12-821 and 12-821.01, filed their complaint seeking declaratory and injunctive relief, tuition reimbursement, and class certification for themselves and other university students. Specifically, they alleged that the Board's decision to raise tuition violated Article 11, Section 6, of the Arizona Constitution, which provides that "[t]he University and all other State educational institutions shall be as nearly free as possible." They also alleged that the Legislature's failure to increase funding for the university system violated Article 11, Section 10, of the Arizona Constitution, which provides, in part, that "the legislature shall make such appropriations, to be met by taxation, as shall ensure the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement."

¶ 4 After venue was transferred to Maricopa County, the State filed a motion to dismiss. It alleged that the Legislature and Board were immune from suit. Specifically, it argued that the Legislature's appropriations for university education and the Board's tuition setting were "legislative acts entitled to absolute immunity." The State also argued that the Legislature and Board were immune because their decisions required the determination of fundamental government policy over which courts should not interfere.

¶ 5 The students argued that their claim was "merely the higher education counterpart of the school financing litigation that led to the decision of the Arizona Supreme Court in Roosevelt Elem. Sch. Dist. No. 66 v. Bishop," 179 Ariz. 233, 877 P.2d 806 (1994), and further argued that neither the Board nor the Legislature were immune from the lawsuit. The trial court subsequently found that the students "[did] not challenge the process whereby the decisions were made to increase the tuition or fund the universities; they challenge the outcome." The court then found that the Board and Legislature were immune from suit and dismissed the complaint. The students appealed.

DISCUSSION

¶ 6 We independently review whether the Legislature and the Board are immune from this lawsuit. See State v. Glassel, 211 Ariz. 33, 53, ¶ 78, 116 P.3d 1193, 1213 (2005); Fairway Constructors, Inc. v. Ahern, 193 Ariz. 122, 124, ¶ 6, 970 P.2d 954, 956 (App.1998). In reviewing the dismissal, we accept the truth of the complaint's allegations and recognize that dismissals "are disfavored and should not be granted unless it appears certain that a party would not be entitled to relief on its asserted claim under any state of facts susceptible of proof." Ariz. Soc'y of Pathologists v. Ariz. Health Care Cost Containment Sys. Admin., 201 Ariz. 553, 557, ¶ 19, 38 P.3d 1218, 1222 (App.2002).

¶ 7 We start our analysis by examining Bishop because the students argued that their lawsuit was designed to challenge the educational funding decisions of the Board and Legislature, just as Bishop challenged the statutory scheme for financing public school education. In Bishop, parents and school districts argued, and our supreme court found, that the complex public school statutory financing scheme for school facilities violated the provision of Article 11, Section 1 of the Arizona Constitution that there shall be "a general and uniform public school system." Bishop, 179 Ariz. at 235, 242-43, 877 P.2d at 808, 815-16. It found that the state's financing scheme caused disparities among school districts and that "the districts are entitled to a declaration that the existing statutory scheme for the financing of public schools in Arizona fails to comply with [Article 11, Section 1] because it is itself the source of substantial nonuniformities." Id. at 243, 877 P.2d at 816. Consequently, the court held that "the Arizona Constitution requires the legislature to enact appropriate laws to finance education in the public schools in a way that does not itself create [213 Ariz. 611]

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substantial disparities among schools, communities or districts." Id.

¶ 8 Here, unlike Bishop, the students do not challenge the statutory financing scheme for the universities. 2 They have not pled that the current statutory scheme to raise revenue for the universities violates the provision of Article 11, Section 1 which requires that "[t]he legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system" or other constitutional provisions. Instead, they challenge the constitutionality of the actions of the Legislature and Board, arguing that Article 11, Sections 6 and 10 were violated when the Legislature failed to increase the university system appropriation and the Board raised tuition by nearly forty percent.

¶ 9 Article 11, Section 6 states, in pertinent part, that "[t]he University and all other State educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible."

¶ 10 Article 11, Section 10, entitled "Source of revenue for maintenance of state educational institutions" provides that:

The revenue for the maintenance of the respective State educational institutions shall be derived from the investment of the proceeds of the sale, and from the rental of such lands as have been set aside by the Enabling Act approved June 20, 1910, or other legislative enactment of the United States, for the use and benefit of the respective State educational institutions. In addition to such income the Legislature shall make such appropriations, to be met by taxation, as shall ensure the proper maintenance of all State educational institutions, and shall make such special appropriations as shall provide for their development and improvement.

¶ 11 The two provisions provoked negligible attention during the adoption of the Arizona Constitution. See The Records of the Arizona Constitutional Convention of 1910, at 960 (John S. Goff ed., 1991); John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 97 (1988). There is no historical record of the intent of the framers beyond the words of the constitutional provisions. 3

¶ 12 Although the framers of our constitution left no historical note about Sections 6 and 10, our supreme court discussed the two constitutional provisions in Board of Regents of University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935). In Sullivan, the Legislature enacted the Educational Institutions Act of 1934 which authorized the Board to issue and sell bonds to any federal agency to improve and enlarge the University of Arizona and accept grants from any federal agency. The Attorney General refused to certify that the bonds conformed to our constitution and state laws. Specifically, the Attorney General thought the 1934 act was unconstitutional because it was passed during a special session; contained more than one subject; would create a state indebtedness; would raise revenues differently than as mandated by Article 11, Section 10; and would violate Article 11, Section 6. Id. at 249-50, 42 P.2d at 621.

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[213 Ariz. 612] ¶ 13 The Board filed a mandamus action in the supreme court to require the Attorney General to certify that the bonds met the requirements of the Arizona Constitution and state law. Id. at 247-48, 42 P.2d at 620-21.

¶ 14 After the supreme court found that the 1934 act was constitutional, it stated that the revenue provisions of Article 11, Section 10 are not the exclusive methods for the maintenance, development, and improvement of universities. Id. at 262, 42 P.2d at 626. It found that:

while [the mandate found in the second sentence of section 10] imports that the educational institutions of the state must be maintained and adequately developed and improved by taxation, [it] does not make that resource the exclusive method. It simply means that it shall be the duty of the legislature to make whatever provision is necessary for the proper and efficient functioning of...

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