SUPREME COURT OF ARIZONA
En Banc
JOHN KROMKO; RACHEL WILSON; ) Arizona Supreme Court
ADRIAN DURAN; SAM BROWN, on ) No. CV-07-0018-PR
their own behalf and on behalf )
of all others similarly situated, ) Court of Appeals
) Division One
) No. 1 CA-CV 04-0250
Plaintiffs-Appellants, )
) Maricopa County
v. ) Superior Court
) No. CV03-021650
THE ARIZONA BOARD OF REGENTS, a )
constitutionally and legally )
established entity of the State )
of Arizona; and THE STATE OF ) O P I N I O N
ARIZONA, )
)
Defendants-Appellees. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Rebecca A. Albrecht, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
213 Ariz. 607, 146 P.3d 1016 (2006)
VACATED IN PART
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PAYSON & GATTONE Tucson
By Paul Gattone
Attorneys for John Kromko, Rachel Wilson,
Adrian Duran, and Sam Brown
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
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
Attorneys for the Arizona Board of Regents and the
State of Arizona
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H U R W I T Z, Justice
¶1 Article XI, Section 6, of the Arizona Constitution
provides for a “university”1 at 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
1
Presumably because there was only one state university when
the Arizona Constitution was drafted, Article XI, Sections 5 and
6, speak of “the university” in the singular. Article XI,
Section 1(A)(6), however, refers to “[u]niversities” and thus
contemplates that the Legislature may create more than one
university. The Legislature has expressly given the Board
“jurisdiction and control over the universities.” A.R.S. § 15-
1625(A) (2002) (emphasis added).
2
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.2
2
The complaint does not distinguish between tuition and
fees, and refers to the Board’s 2003 action as an increase in
3
The 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.3 The
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.
¶6 The superior court dismissed the claims against the
Board and the Legislature, finding both absolutely immune from
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“tuition.” For purposes of simplicity, we do the same in this
opinion.
3
The complaint does not allege that the plaintiffs are
Arizona residents, and the class allegations are not on their
face limited to state residents. It is clear, however, that the
directive in Article XI, Section 6, applies only to Arizona
residents. See Ariz. Bd. of Regents v. Harper, 108 Ariz. 223,
495 P.2d 453 (1972) (upholding Board’s ability to differentiate
4
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.
¶8 The Board petitioned for review; we granted the
petition because this case involves issues of obvious statewide
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between residents and non-residents with respect to tuition
rates).
5
importance. See ARCAP 23(c)(3).4 We 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”
4
The students did not seek review of the opinion below; their
claims against the Legislature are thus no longer at issue.
6
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 (1993) (quoting Baker v. Carr, 369 U.S. 186,
217 (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)).
¶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. 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. Our state
Constitution expressly provides that the departments of our
7
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
assigns the power to set tuition to other branches of government
simply begins the inquiry. The students, after all, do not
contend that the judiciary should set tuition, but rather only
that the tuition for 2003-04 violates the “as nearly free as
possible” provision in Article XI, Section 6. They argue that
just as the courts have the power to review the
constitutionality of legislation enacted by the people or the
Legislature pursuant to Article IV of the Arizona Constitution,
the courts also have the power to review the constitutionality
of tuition levels established by the Board or the Legislature
pursuant to Article XI of the Arizona Constitution.
¶14 This argument necessarily requires us to confront the
second critical prong of the political question test: whether
8
there exist judicially discoverable and manageable standards for
determining when tuition is constitutionally excessive. As
Chief Justice Rehnquist stated in Nixon,
[T]he concept of a textual commitment to a coordinate
political department is not completely separate from
the concept of a lack of judicially discoverable and
manageable standards for resolving it; the lack of
judicially manageable standards may strengthen the
conclusion that there is a textually demonstrable
commitment to a coordinate branch.
506 U.S. at 228-29; see also Coleman v. Miller, 307 U.S. 433,
454-55 (1939) (referring to “the lack of satisfactory criteria
for a judicial determination” as a “dominant consideration[]” in
determining whether an issue is nonjusticiable). It is to this
issue – whether there are “judicially discoverable and
manageable standards” by which a court could determine if
tuition is “as nearly free as possible” – that we next turn.
C.
¶15 If Article XI, Section 6, required instruction for
university students to be “free,” there would be judicially
discoverable and manageable standards for determining
constitutional compliance. But this Court long ago held that
the phrase “as nearly free as possible” does not entitle Arizona
residents to an “entirely free” college education. Bd. of
Regents v. Sullivan, 45 Ariz. 245, 263, 42 P.2d 619, 626 (1935).
Our prior cases, however, provide no guidance on how to measure
whether tuition at some level above zero is “as nearly free as
9
possible.” Although Sullivan noted, for example, that the
defendant attorney general had made “no suggestion” that fees to
be paid by students for accommodations were “excessive or other
than reasonable, or are not as nearly free as possible,” id.,
the Court did not speculate whether or how, if such a claim were
made, it could be judicially assessed.
¶16 Nor do our statutes currently provide standards by
which a court could measure whether tuition was too high. The
Legislature has provided such guidance in the past. At the time
the Arizona Constitution was ratified, for instance, the
Legislature prohibited the Board from setting admission fees and
annual tuition in excess of seventy dollars. See Ariz. Civ.
Code § 3636 (1901) (amended 1912); id. § 4481 (1913) (amended
1925). In 1925, however, the Legislature lifted the statutory
cap, 1925 Ariz. Sess. Laws 155, 157-58, ch. 55, § 5 (codified at
Ariz. Civ. Code § 1135 (1928)), and the law now contains no such
restriction, see A.R.S. § 15-1626(A)(5).
¶17 Rather, the Board is required to adopt annual
operating budgets for each state university “equal to the sum of
appropriated general fund monies and the amount of tuition,
registration fees and other revenues approved by the board and
allocated to each university operating budget.” A.R.S. § 15-
1626(A)(13). Neither the Constitution nor our statutes offer
guidance on an appropriate sum for a university operating
10
budget, let alone as to which proportions of that budget should
be satisfied through appropriated funds, tuition, registration
fees, and “other revenues.”
¶18 Instead, the ultimate size of the budget is left to
the discretion of the Board. The Board sets that budget only
after making a series of policy decisions about the quality of
the state universities and the level of instruction to be
offered. These discretionary decisions about class size, the
quality of facilities and infrastructure, the pay of faculty and
staff, and so on – decisions that the students do not challenge
in this case – along with the amount of revenue available from
the general fund and other sources, dictate the amount of
revenue that must be raised through tuition.
¶19 The cost of tuition could of course be reduced if the
Board and the Legislature made different policy decisions. For
example, if the Board decided to reduce faculty salaries or
increase class size or conduct classes in buildings that are
less dutifully maintained, assuming that general fund
appropriations and revenue from other sources remained
unchanged, the amount of tuition required would be lower than if
the Board opted for better faculty salaries, smaller classes,
and more modern facilities. So in claiming that tuition is too
costly, the students must effectively argue either that the
Board should have made less expensive policy decisions about the
11
operation and maintenance of the state universities or that more
money should have been appropriated from the general fund or
obtained from other sources.
¶20 Indeed, a court cannot assess whether the cost of
tuition is as nearly free as possible in the absence of an
initial policy determination of a kind clearly reserved to the
Legislature and the Board. See Baker, 369 U.S. at 217. Because
the universities’ annual operating budgets are established by
combining general fund appropriations with tuition, registration
fees, and other revenues, see A.R.S. § 15-1626(A)(13), it is
impossible to determine whether tuition is as nearly free as
possible without also confronting two inextricably related
issues. First, a court would have to ascertain whether the
Legislature appropriated sufficient money from the general fund
to allow for the proper operation of the universities at a lower
level of tuition. But the courts below held, and the students
do not today dispute, that the Legislature’s funding decisions
are immune from judicial review. Kromko, 213 Ariz. at 610 ¶ 5,
613 ¶¶ 21-23, 146 P.3d at 1019, 1022. Second, a court would
have to determine whether, in light of the amount actually
appropriated by the Legislature, the Board of Regents adopted
too expensive a budget or, in other words, whether the
universities should offer educational services of a lesser
number or quality than those chosen by the Board.
12
¶21 We can conceive of no judicially discoverable and
manageable standards – and the students have suggested none – by
which we could decide such issues, either individually or in the
aggregate. Even assuming, as the students contend, that Article
XI, Section 6, requires that tuition be “reasonable” and not
“excessive,” there is no North Star to guide a court in making
such a determination; at best, we would be substituting our
subjective judgment of what is reasonable under all the
circumstances for that of the Board and Legislature, the very
branches of government to which our Constitution entrusts this
decision. The issue of whether tuition is as nearly free as
possible is thus a nonjusticiable political question. See Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)
(“The Judiciary is particularly ill suited to make such
decisions, as ‘courts are fundamentally underequipped to
formulate national policies or develop standards for matters not
legal in nature.’” (quoting United States ex rel. Joseph v.
Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981))).
D.
¶22 Our holding that the issue presented in this case is
nonjusticiable is not a determination that the 2003-04 level of
tuition is constitutional. As we have previously noted,
A determination that an issue is a political question
is “very different from determining that specific
[governmental] action does not violate the
13
Constitution. That determination is a decision on the
merits that reflects the exercise of judicial review,
rather than an abstention from judicial review that
would be appropriate in the case of a true political
question.”
Forty-Seventh Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d at
1026 (quoting United States Dep’t of Commerce v. Montana, 503
U.S. 442, 458 (1992)) (alterations in original).
¶23 Nor does our decision today mean that the Board is
free from constitutional constraints in setting tuition.
Rather, we hold only that other branches of state government are
responsible for deciding whether a particular level of tuition
complies with Article XI, Section 6. Indeed, through the
adoption of ABOR Manual § 4-104, a policy the students do not
challenge, the Board has sought to effectuate the constitutional
mandate by voluntarily restricting its ability to set tuition
above the bottom third of tuitions charged by peer institutions.
If the Legislature believes tuition should be lower, it is free
to enact a different policy or to set tuition itself.
¶24 Nor do we today hold that all funding decisions by
other branches of government are insulated from judicial review.
In some cases, there will be a judicially discoverable and
manageable standard for measuring the constitutionality of a
funding decision. In Roosevelt Elementary School District No.
66 v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994), for example,
we concluded that a statutory funding scheme for public
14
education violated the “general and uniform” requirement in
Article XI, Section 1. That decision rested on the premise that
there were judicially discoverable and manageable standards for
determining whether the school system was “general and uniform.”5
In contrast, it is impossible for courts to determine by a
similarly objective standard whether tuition is as nearly free
as possible.
III.
¶25 For the foregoing reasons, we hold that the issue
presented in the students’ complaint – whether the 2003-04
tuition increase runs afoul of the “as nearly free as possible”
provision – is a nonjusticiable political question. The
superior court therefore correctly dismissed the claim against
the Board.6
¶26 We affirm the judgment of the superior court and
vacate the opinion of the court of appeals insofar as it held
that the complaint against the Board should not have been
dismissed.
__________________________________
Andrew D. Hurwitz, Justice
5
In Roosevelt, the State conceded the existence of
substantial disparities among the districts’ facilities and a
causal relationship between those disparities and the statutory
scheme. 179 Ariz. at 243, 877 P.2d at 816.
6
Given our disposition today, we need not decide whether the
Board was immune from liability under A.R.S. § 12-820.01 for its
tuition setting decision.
15
CONCURRING:
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Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
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Michael D. Ryan, Justice
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Joseph W. Howard, Judge∗
∗
Justice Bales recused himself in this case. Pursuant to
Article VI, Section 3, of the Arizona Constitution, the
Honorable Joseph W. Howard, Judge of the Arizona Court of
Appeals, Division Two, was designated to sit in this matter.
16