Arizona Bd. of Regents v. Harper

• Decision Date: 06 April 1972
• Docket Number: No. 10596,10596
• Citation: 495 P.2d 453,108 Ariz. 223
• Parties: , 56 A.L.R.3d 627 ARIZONA BOARD OF REGENTS et al., Appellants, v. James L. HARPER et al., Appellees.
• Court: Arizona Supreme Court

Page 453

495 P.2d 453

108 Ariz. 223, 56 A.L.R.3d 627

ARIZONA BOARD OF REGENTS et al., Appellants, v. James L. HARPER et al., Appellees.

No. 10596.

Supreme Court of Arizona, In Banc.

April 6, 1972.

Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellants.

William J. Risner, of Risner, Wolf & Raven, Tucson, for appellees.

HAYS, Chief Justice.

On January 10, 1969, seven University of Arizona students named Harper, Dobras, Logan, Lawrence, Murray Alan McBride, and Judith McBride, sued the Arizona Board of Regents (hereinafter referred to as the Board) for the purpose of forcing the Board to reclassify them as residents of Arizona and to refund the nonresident tuition they had paid, and asking the court to declare the one-year residency unconstitutional. Nonresidents must pay more than $400 tuition each semester, over and above what residents must pay. The action was originally brought for a writ of mandamus. Two subsequent actions were brought for administrative review under A.R.S. § 12--901 et seq.

On May 12, 1970, plaintiffs amended all three of their complaints to eliminate any prayer for mandamus or administrative review and to request only declaratory judgments under A.R.S. § 12--1831. It was stipulated that the three cases be consolidated for trial to the court without a jury.

That trial court found that all of the plaintiffs were residents of Arizona and had been improperly charged nonresident tuition; that each plaintiff was entitled to a refund of the overcharge; that the one-year residency requirement was unconstitutional; and that the case was controlled by Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. The Board appealed to the Court of Appeals, on whose petition we ordered the case transferred to us for final disposition.

The Board had previously adopted the following rule which was published in the annual University catalogue:

'A student to be considered a legal resident of Arizona for the purpose of registering at the University of Arizona must meet the requirements and must present evidence thereof as follows:

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'If Over 21 Years of Age--that legal residence in the state has been established (independently of the circumstance of attendance at an Arizona institution of learning) for at least one year next preceding the last day of registration for credit, and that he is eligible to become a registered voter. . . .'

Plaintiffs contend that the Board is without authority to adopt a rule requiring residence of one year before a student may be classified as a resident. A.R.S. § 15--725 provides that the Board shall:

'Enact ordinances for the government of the institutions under its jurisdiction.

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'Fix tuitions and fees to be charged and graduate the tuitions and fees between institutions and between residents, nonresidents, and students from foreign countries, . . .'

Plaintiffs' position is that the Board has no inherent powers and that the statute does not delegate to the Board the power to make this specific rule. Plaintiffs overlook the fact that the Board has not only the powers expressly delegated to it but also such powers as may be reasonably implied for the purpose of effectuating its purposes. As John Marshall once wrote:

'Let the end be legitimate . . . and all means which are . . . plainly adapted to that end . . . are constitutional.' McCulloch v. Maryland, 4 Wheat 316, 4 L.Ed. 579.

Plaintiffs argue that the Board's one-year requirement violates Article 11, Section 6, of the Arizona Constitution, A.R.S. which provides that the University shall furnish instruction to its students 'as nearly free as possible.' We believe that for all practical purposes that contention was settled by Board of Regents of the University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619, in which we said:

'Defendant insists that (Sec. 6, Art. 11 of the Arizona Constitution) means instruction shall be entirely free, and therefore contends that, because the University has fixed a schedule of fees to be paid by students . . . it has violated said section 6. We think the language of the Constitution refutes this contention. There is no suggestion that the fees, rentals, etc., are excessive or other than reasonable, or are not as nearly free as possible.' p. 263, 42 P.2d p. 626.

Plaintiffs' principal attack, however, is based upon the position that the one-year residency requirement is a violation of the Due Process, Equal Protection, and Privileges and Immunities clauses of both the state and federal constitutions and a violation of the Interstate Commerce clause of the federal constitution. In Shapiro, supra, the United States Supreme Court invalidated a one-year residency requirement where it had been imposed to defeat a new resident's right to receive a state welfare allowance. Plaintiffs attempt to apply the reasoning of Shapiro to reach the conclusion that a term of residence may not be made a prerequisite for relief from payment of tuition. Shapiro was also the basis of the trial court's judgment. We think that the cases are entirely different. One who contemplates traveling to a different state will give much more thought to the fact that upon arrival, his food and shelter requirements previously covered by his monthly welfare check will not be met for a considerable period of time. One who knows that his welfare check will continue to arrive, or who is not on welfare, will not be deterred so easily from the trip simply because he will have to pay nonresident tuition if he desires to attend college at his destination. It should also be noted that the Court, in HAPIRO, SUPRA, SPECIFICALLY POINTED OUT:

'We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.' (n. 21 of the opinion.) (Emphasis added).

Subsequent to the filing of briefs in the instant case, the United States Supreme Court, in a six-to-one decision, rendered its opinion in the case of Dunn, Governor of Tennessee v. Blumstein, 405 U.S. ---, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In that case, the Court struck down a one-year durational residence requirement to vote in Tennessee. We can assume that had the Dunn case been available earlier, plaintiffs would have argued that the reasoning in it, like shapiro, supra, requires the conclusion that a similar residence requirement for free tuition must also be invalidated. Again, we consider the cases to involve vastly different considerations. For example, some of the following things said in Dunn, supra, are not applicable to the instant case:

'Nor has Tennessee ever disputed that appellee was a bona fide resident of the State. . . . By denying some citizens the right to vote, such laws deprive them of 'a fundamental political right' . . . a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. . . . Statutes distributing the franchise 'constitute the foundation of our representative society. . . . It has long been established that a state may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . .' It is impossible to view durational residence requirements as necessary to achieve that state interest. . . . As long as the State relies on the oath-swearing system to establish qualifications, a durational residence requirement adds nothing to a simple residence requirement. . . . As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident. . . . If the State presumes residence in the county after three months in the county, there is no rational explanation for requiring a full 12 months presence in the State. . . . Tennessee has at its disposal a variety of criminal laws which are more than adequate . . . (so that) it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud. . . . A state does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than long-time residents.' (Emphasis added.)

In view of the differences between the instant case and Shapiro, supra, and of the fact that many of the arguments in Dunn, supra, are inapplicable here, we are unwilling to extend the invalidation of durational residence requirements to the question of who has to pay tuition in the universities of the state of Arizona.

There is ample authority for upholding the constitutionality of durational residence requirements for tuition purposes. In 55 Minn.L.Rev. 1139, we find the following statements:

'Where the resident-nonresident tuition classification has been attacked on constitutional grounds, the courts have Always upheld the state's right to charge nonresidents higher tuition than residents. P. 1147 (emphasis added).

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* * * 'In upholding nonresident tuition the courts have found it enough to say that nonresident tuition involves a reasonable classification and is rationally related to the legitimate state object of financing the state university. Nonresident tuition has never been scrutinized under the 'compelling interest' standard. . . . Nonresident tuition would have to be judged under that standard if it were found to chill or to penalize the...