Hunter v. University of Washington

Decision Date26 June 2000
Docket NumberNo. 44593-6-I.,44593-6-I.
Citation2 P.3d 1022,101 Wash.App. 283
CourtWashington Court of Appeals
PartiesKem HUNTER, Appellant, v. UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent.

Gregory Mann Miller, Seattle, for Appellant.

Christine O. Gregoire, Atty. Gen., and Loretta M. Lamb, Asst. Atty. Gen., Seattle, for Respondent.

COLEMAN, J.

In this case we must decide whether the University of Washington is subject to the rule-making requirements set forth in the Administrative Procedure Act (APA) when promulgating regulations that impact tuition reductions for Vietnam veterans. The University imposed regulations for the veteran tuition reduction program that require students to be pursuing their first bachelors or first masters degrees and exempt students of certain professional schools from eligibility. The University's regulations affect Vietnam veteran students as a class and qualify a benefit that is conferred by law. They therefore are the type of regulation that is subject to public comment and rule-making procedures under the APA. Because the University's regulations were not adopted according to the rule-making requirements of the APA, they are invalid.

FACTS

Kem Hunter is a Washington resident who served as a Navy lieutenant in the Vietnam War. In 1997, Hunter applied and was accepted into both the law school and the Japanese studies masters degree program at the University of Washington. Because he was required to take only law courses during the first year of law school, Hunter decided to postpone acceptance into the Japanese studies program until the following year, when he planned to take concurrent courses in both programs.

The law school announced in its general bulletin that fee and tuition reductions may be available to Washington residents who served in Southeast Asia, and Hunter applied for the veteran tuition waiver. Hunter received the tuition waiver for two quarters, after which he was informed that it was available only to those veterans pursuing their first masters or first bachelors degrees. He was told that the professional schools of law, medicine, dentistry, and pharmacy are specifically excluded from the veteran tuition reduction program.

Hunter wrote to Tim Washburn, the director of admissions and records, requesting specific information to form the basis of a possible appeal. In Washburn's response, he stated that the requirement that veterans must be pursuing their first bachelors or masters degree was to provide the tuition exemption "to the broadest audience at a level where their studies would have most likely been disrupted if called to serve during the Vietnam conflict." Washburn concluded that "[t]he existing Southeast Asia tuition exemption policy restricting eligibility to undergraduate and graduate students pursuing their first degrees is University policy and there are no plans to modify the policy."

Three weeks later, Hunter filed a petition in superior court for review of agency action. After argument, the trial court did not take the position that the APA applied and instead ruled that a writ of certiorari should be issued to review the agency action. The trial court then dismissed the writ because it did not find that the agency action was arbitrary or capricious or contrary to law.

Hunter appeals, arguing that the University's regulations regarding veteran tuition waivers is subject to the rule-making requirements of the APA. He also contends that the University does not have the authority to impose the additional restrictions. Alternatively, he contends that even if review is not available under the APA, under certiorari review, the University's actions were arbitrary and capricious or contrary to its lawful authority.

DISCUSSION1

The Washington Legislature enacted the following statute, which encourages state schools to give tuition reductions to Vietnam veterans.

(1) The legislature finds that military and naval veterans who have served their country in wars on foreign soil have risked

their own lives to defend both the lives of all Americans and the freedoms that define and distinguish our nation. The legislature also finds that veterans of the Vietnam conflict suffered during and after the war as the country anguished over its involvement in the conflict. It is the intent of the legislature to honor Vietnam veterans for the public service they have provided to their country. It is the further intent of the legislature that, for eligible Vietnam veterans, colleges and universities waive tuition and fee increases that have occurred since October 1, 1977.

(2) Subject to the limitations of RCW 28B.15.910, the governing boards of the state universities, the regional universities, The Evergreen State College, and the community colleges may exempt veterans of the Vietnam conflict who have served in the southeast Asia theater of operations from the payment of all or a portion of any increase in tuition and fees that occur after October 1, 1977, if the veteran qualifies as a resident student under RCW 28B.15.012.
(3) For the purposes of this section, "veterans of the Vietnam conflict" shall be those persons who have been on active federal service as a member of the armed military or naval forces of the United States between a period commencing August 5, 1964, and ending on May 7, 1975.
(4) This section shall expire June 30, 1999.[2]

RCW 28B.15.620. The statutory requirements for eligibility are that veterans must have served in the "southeast Asia theater of operations," they must have been in active federal service between August 5, 1964 and May 7, 1975, and they must qualify as resident students. RCW 28B.15.620. Under the statute, the University has the discretion to implement the tuition reduction program for Vietnam veterans and to determine the amount of tuition it will waive. RCW 28B.15.620. At issue are the University's additional eligibility restrictions requiring that veterans be pursuing their first bachelors or first masters degree and exempting from eligibility the students of the named professional schools.

The appellate court sits in the same position as the superior court when reviewing an agency's decision, applying the applicable standards of review in RCW 34.05.570 directly to the record. Department of Ecology v. Theodoratus, 135 Wash.2d 582, 589, 957 P.2d 1241 (1998). Here, we first determine whether the University's regulations are rules under the APA.

A. Characterization of the University's Restrictions

Hunter argues that the University's regulations regarding veteran tuition reductions satisfy the statutory requirements of a rule and are therefore subject to the APA. A "rule" is defined as "any agency order, directive, or regulation of general applicability... which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law[.]" RCW 34.05.010(16). A rule does not include, however, "rules of institutions of higher education involving standards of admission, academic advancement, academic credit, graduation and the granting of degrees, employment relationships, or fiscal processes." RCW 34.05.010(16)(iv). If a regulation falls within the statutory definition of a rule, it is treated as a rule. See Hillis v. Department of Ecology, 131 Wash.2d 373, 932 P.2d 139 (1997).

Here, the University's requirement that veterans be pursuing their first bachelors or first masters degrees and the exemption of the professional schools both apply to the entire class of veterans. A rule is one of "general applicability" if it applies to individuals only as members of a class, regardless of the size of the class. See William R. Andersen, The 1988 Washington Administrative Procedure Act—An Introduction, 54 Wash. L.Rev. 781, 790 & n. 43 (1989). Because the regulations affect Vietnam veterans as a class, they are of general applicability.

The University's regulations also satisfy the second requirement of a rule because they affect the right to receive a benefit conferred by law. Requiring that eligible veterans be pursuing their first bachelors or first masters degrees and excluding certain professional schools affects the right to receive a tuition reduction. Those requirements limit the group of statutorily eligible veterans able to receive the benefit of a tuition reduction. By limiting that group, the University has established, altered, or revoked "any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law[.]" RCW 34.05.010(16)(c).

The University's eligibility requirement is similar in effect to the Department of Ecology's policies and procedures considered in Hillis. In Hillis, the petitioners applied for water rights permits, which five years later had still not been processed. In order to accommodate the increasing number of water permit applications, the Department began processing them in batches based upon geographic watershed location, and it set criteria to determine the priorities of the applications. Hillis, 131 Wash.2d at 379, 932 P.2d 139. The plaintiffs asserted that the Department did not comply with rule-making procedures regarding its decisions as to what kinds of water applications should be given priority or the process that it used in its watershed assessments. Hillis, 131 Wash.2d at 397-98, 932 P.2d 139. The court stated that the benefit or privilege was the right to apply for a groundwater withdrawal permit and to have the application investigated and decided upon under the relevant statutory criteria. Hillis, 131 Wash.2d at 398-99, 932 P.2d 139. When the Department added priorities and prerequisites to its decisions, it affected the applicants' right to apply and have their applications investigated. Thus, the priorities and prerequisites constituted "qualifications or requirements" under the definition of a rule and, as such, were subject to rule-making procedures. Hillis, 131...

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