Kromko v. Arizona Board of Regents

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
________________________________________________________________

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
________________________________________________________________

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

______________________________________
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

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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:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
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