165 P.3d 168 (Ariz. 2007), CV-07-0018, Kromko v. Arizona Bd. of Regents

Docket Nº:CV-07-0018-PR.
Citation:165 P.3d 168, 216 Ariz. 190
Opinion Judge:OPINION HURWITZ, Justice.
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. The ARIZONA BOARD OF REGENTS, a constitutionally and legally established entity of the State of Arizona; and the State of Arizona, Defendants-Appellees.
Attorney:Payson & Gattone by Paul Gattone, Tucson, Attorneys for John Kromko, Rachel Wilson, Adrian Duran, and Sam Brown., Terry Goddard, Arizona Attorney General by Mary R. O'Grady, Solicitor General, Paula S. Bickett, Chief Counsel, Civil Appeals, Bruce L. Skolnik, Assistant Attorney General, Daniel P. ...
Case Date:August 09, 2007
Court:Supreme Court of Arizona

Page 168

165 P.3d 168 (Ariz. 2007)

216 Ariz. 190

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

v.

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

No. CV-07-0018-PR.

Supreme Court of Arizona, En Banc.

Aug. 9, 2007

Appeal from the Superior Court of Appeals Division One No. 1 CA-CV 04-0250, Maricopa County, No. CV03-021650, Rebecca A. Albrecht, Judge

Opinion of the Court of Appeals, Division One 213 Ariz. 607, 146 P.3d 1016 (2006)

Payson & Gattone by Paul Gattone, Tucson, Attorneys for John Kromko, Rachel Wilson, Adrian Duran, and Sam Brown.

Terry Goddard, Arizona Attorney General by Mary R. O'Grady, Solicitor General, Paula S. Bickett, Chief Counsel, Civil Appeals, Bruce L. Skolnik, Assistant Attorney General, Daniel P. Schaack, Assistant Attorney General , Phoenix, Attorneys for the Arizona Board of Regents and the State of Arizona.

Page 169

OPINION

HURWITZ, Justice.

¶ 1 Article XI, Section 6, of the Arizona Constitution provides for a "university" 1at which "the instruction furnished shall be as nearly free as possible." This case requires us to decide whether the superior court correctly dismissed a complaint alleging that the tuition charged at Arizona's state universities for the 2003-04 academic year violated this constitutional provision.

I.

¶ 2 The Arizona Constitution mandates "a general and uniform public school system, " including "[u]niversities." Ariz. Const. art. XI, § 1(A). The Constitution also provides for a Board of Regents to govern the universities. Id. § 2 (providing for "such governing boards for the state institutions as may be provided by law"); id.§ 5 (identifying the "regents of the university" as a governing board). The Board is comprised of the governor, id. § 5, the state superintendent of public instruction, id. § 4, and others "appointed by the governor with the consent of the senate in the manner prescribed by law, " id. § 5; see also A.R.S. § 15-1621(A) (Supp. 2006) (providing for "ten appointive members").

¶ 3 The Legislature has delegated to the Board the power to "[f]ix tuitions and fees to be charged" at the state universities. A.R.S. § 15-1626(A)(5) (Supp. 2006). The Board is also required by law to adopt rules governing the "tuition and fee setting process." A.R.S. § 15-1626(A)(6). In 1987, the Board adopted a policy requiring the consideration of a variety of factors in setting tuition, but providing that "resident student fees shall not exceed the amount required to maintain a position within the lower one-third of rates set by all other states for resident fees." Ariz. Bd. of Regents Policy Manual ("ABOR Manual") § 4-104 (1987) (amended 1988). In January 2003, the Board amended its policy to provide that "total mandatory undergraduate resident student tuition and fees shall not exceed the amount required to maintain a position at the top of the lower one-third of rates set by all other states for undergraduate resident tuition and mandatory fees at the senior public universities." Id. (2003) (amended 2006).

¶ 4 In March 2003, the Board considered a proposal by the presidents of the three state universities to raise tuition and fees for state residents by 39.1% for the 2003-04 academic year. 2The presidents claimed that such an increase was necessary in part to service the debt incurred by ongoing and future capital improvements. After a public hearing, the Board approved the requested increase.

¶ 5 Three undergraduates and one law student at the University of Arizona then filed a complaint, on behalf of themselves and a putative class of all undergraduate and graduate students, against the Board and the Legislature. 3The complaint alleged that the 2003-04 tuition increase violated Article XI, Section 6. The complaint also alleged that the Legislature had violated Article XI, Section 10, of the Arizona Constitution, which provides in part that "the legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions." The complaint sought declaratory and injunctive relief, as well as a refund of the tuition increase.

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¶ 6 The superior court dismissed the claims against the Board and the Legislature, finding both absolutely immune from suit under A.R.S. § 12-820.01(A) (2003). The court of appeals reversed in part and affirmed in part. Kromko v. Ariz. Bd. of Regents, 213 Ariz. 607, 146 P.3d 1016 (App. 2006). The court unanimously agreed that the Legislature is absolutely immune for its appropriations decisions. Id. at 613 ¶ ¶ 21-23, 146 P.3d at 1022. A majority of the panel held, however, that § 12-820.01(A) does not immunize the Board from suit for equitable and declaratory relief, id. at 614-15 ¶ ¶ 29-36, 146 P.3d at 1023-24, or from suit for restitution of unconstitutionally collected tuition, id. at 615 ¶ ¶ 37-38, 146 P.3d at 1024. The majority further held that the students' complaint stated a claim upon which relief could be granted. Id. at 615-16 39, 146 P.3d at 1024-25.

¶ 7 Concurring in part and dissenting in part, Judge Irvine agreed that the Legislature was immune from suit. Id. at 616 41, 146 P.3d at 1025. He concluded, however, that the students' claim against the Board was properly dismissed because "setting tuition" is "a political question that is not suitable for judicial resolution." Id. 43, 146 P.3d 1016.

¶ 8 The Board petitioned for review; we granted the petition because this case involves issues of obvious statewide importance. See ARCAP 23(c)(3). 4We have jurisdiction pursuant to Article VI, Section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

¶ 9 It is important at the outset to note what is - -and is not - -at issue in this case. The students do not challenge the constitutionality of ABOR Manual § 4-104, which requires resident undergraduate tuition to be no higher than "the top of the lower one-third of rates set by all other states." The students also do not claim that the 2003-04 tuition increase set tuition above the limit provided in ABOR Manual § 4-104. Nor do they claim that the Board failed to follow its own procedural rules in setting the 2003-04 tuition. See A.R.S. § 15-1625(A)(6) (2002) (requiring the Board to adopt rules governing "its tuition and fee setting process" and requiring the rules to provide for public disclosure of proposed increases, public hearings, and roll call votes). We therefore have no occasion today to decide whether such allegations would present justiciable questions.

¶ 10 Rather, the complaint alleges only that the total amount of tuition charged for the 2003-04 academic year was excessive and thus violated the "as nearly free as possible" provision in Article XI, Section 6, of the Arizona Constitution. The Board, in turn, claims that this case presents a nonjusticiable political question.

A.

¶ 11 "A controversy is nonjusticiable - -i.e., involves a political question - -where there is 'a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it ....' " Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)); see also Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 7, 143 P.3d 1023, 1026 (2006) (defining political questions as "decisions that the constitution commits to one of the political branches of government and raise issues not susceptible to discoverable and manageable standards" (citing Baker, 369 U.S. at 217, 82 S.Ct. 691)).

¶ 12 The federal political question doctrine flows from the basic principle of separation of powers and recognizes that some decisions are entrusted under the federal constitution to branches of government other than the judiciary. Baker, 369 U.S. at 210-11, 82 S.Ct. 691. Arizona courts refrain from addressing political questions for the same reasons. See Forty-Seventh Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d at 1026.

Page 171

Our state Constitution expressly provides that the departments of our state government "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." Ariz. Const. art. III; see also Mecham v. Gordon, 156 Ariz. 297, 300, 751 P.2d 957, 960 (1988) ("Nowhere in the United States is [separation of powers] more explicitly and firmly expressed than in Arizona.").

B.

¶ 13 The authorities set forth above make plain that decisions about setting university tuition are constitutionally entrusted to branches of government other than the judiciary. See supra ¶ ¶ 2-3. However, the fact that the Constitution...

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