Toll v. Moreno

Eldridge, J., delivered the opinion of the Court. The Supreme Court of the United States, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), § 12-601 et seq. of the Courts and Judicial ⁴²⁷ Proceedings Article, requests that we answer the following question of law: “Are persons residing in Maryland who hold or are named in a visa under 8 II. S. C. § 1101 (a) (15) (G) (iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?” Elkins v. Moreno, 435 U. S. 647, 669 , 98 S. Ct. 1338, 1351 , 55 L.Ed.2d 614 (1978). The facts pertinent to this question are as follows.

The named plaintifffs in this class action, Juan C. Moreno, Juan P, Otero and Glare B. Hogg, are all nonimmigrant aliens attending the University of Maryland, 1 and they have all resided in Maryland for substantial periods of time. 2 The three students are financially dependent upon nonimmigrant parents who are employees of either the Inter-American Development Bank or the International Bank for Reconstruction and Development. As such, the plaintiffs are in this country under “G-4 visas,” which is a nonimmigrant visa issued to “officers, or employees ... of international organizations, and members of their immediate families” pursuant to 8 U. S. C. § 1101 (a) (15) (G) (iv). The parents of these plaintiffs, as employees of international organizations, are by treaty exempted from federal and state taxes on their organization salaries. However, any other monies earned are fully subject to applicable federal and state income taxes.

The controversy is over these students’ status for tuition purposes at the University of Maryland. Moreno, Otero and Hogg sought “in-state” tuition status at the school. The University has established a general policy statement which ⁴²⁸ sets forth standards for determining under what circumstances “in-state status for admission, tuition and charge-differential purposes” should be granted. It provides: “General Policy “1.

It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases: “a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester. “2. It is the policy of the University of Maryland to attribute out-of-state status for admission, tuition, and charge differential purposes in all other cases. “Definitions “1. A student is financially dependent if he receives half or more than half of his support from another person or persons, or appears as a dependent on the federal or state income tax return of any other person.... “4.

A domicile is a person’s permanent place of abode; namely, there must be demonstrated an intention to live permanently or indefinitely in Maryland. For purposes of this policy only one domicile may be maintained at a given time....” As part of the University’s policy statement, several criteria are set forth for determining domicile: “a. Own or rent and occupy real property in Maryland as one’s domicile on a year-round basis. ⁴²⁹ “b. Maintain a substantially uninterrupted presence within Maryland for six consecutive months, including those months when the University is not in regular session. “c.

Maintain within the State of Maryland all or substantially all personal possessions. “d. Pay Maryland income tax on all earned income including all taxable income earned outside the State. “e. Register all owned motor vehicles in Maryland. “f. Possess a valid Maryland driver’s license, if licensed. “g.

Register to vote in Maryland, if registered. “h. Give a Maryland home address on federal and state income tax forms.” Moreno’s application for in-state status was denied based on the school’s determination that neither he nor his father were Maryland domiciliaries. Otero was refused in-state status because he was not a United States citizen nor an alien admitted for permanent residence to this country. Upon denial of their applications, in accordance with University procedures, Moreno and Otero appealed to the Inter-campus Review Committee.

The Review Committee also denied the requests, stating: “The differential in tuition for in-state and out-of-state fees is based upon the principle that the State of Maryland should subsidize only those individuals who are subject to the full scope of Maryland tax liability. Such taxes support in part the University. The University of Maryland’s present classification policies rest upon this principle of cost equalization. In examining the particulars of your case it is felt that neither you nor your parents are subject to the full range of Maryland taxes (e.g., income tax) and therefore the University must classify you as out-of-state with the consequential higher tuition rate. ⁴³⁰ “You have raised the question of domicile.

It is our opinion that a holder of a G-4 visa cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile.” (Emphasis supplied.) After the refusal by the Review Committee to grant Moreno and Otero in-state status, a final intra-school review was sought from the President of the University. He also refused their requests, stating: “It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes only to United States citizens and to immigrant aliens lawfully admitted for permanent residence. Furthermore, such individuals (or their parents) must display Maryland domicile. This classification policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not.

In reviewing these cases, it does not appear that the parents pay Maryland income tax. It is my opinion, therefore, that the aforesaid purpose of the policy, as well as the clear language of the policy, requires the classification of Mr. Moreno and Mr. Otero as ‘out-of-state.’ “The University’s classification policy also distinguishes between domiciliaries and nondomiciliaries of Maryland. In this regard, it is my opinion, and the position of the University, that the terms and conditions of a G-4 nonimmigrant visa preclude establishing the requisite intent necessary for Maryland domicile. Thus, because Mr. Moreno and Mr. Otero are not domiciliaries of Maryland, and because of the underlying principle of cost equalization, I am denying the requests for reclassification.” (Emphasis supplied.) ⁴³¹ The third plaintiff, Clare B. Hogg, was also denied in-state status.

Her application was initially rejected by the University because: “[T]he policy for the determination of in-state status limits the ability to establish an in-state classification to United States citizens and immigrant aliens admitted to the United States for permanent residence. As the person upon whom you are dependent holds a G-4 visa, and as you hold a G-4 visa, in my judgment you are not eligible for an in-state classification. “Also, the person upon whom you are dependent does not pay Maryland income tax on all earned income, including income earned outside the state. I feel this further weakens your request for reclassification, as this is an important criterion in determination of domicile.” She took an appeal to the Review Committee, which said: “... [A] holder of a non-immigrant visa, including the G-4 visa you hold, cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile.” A final administrative appeal was taken to the University President, and he rejected the application for reasons similar to those given plaintiffs Moreno and Otero. Receiving no relief from within the University, the plaintiffs filed a class action against the school and its President in the United States District Court for the District of Maryland. 3 Plaintiffs sought injunctive and declaratory ⁴³² relief for themselves and other similarly situated students covered by a G-4 visa, alleging that the defendant’s refusal to give them in-state status violated various federal statutes, as well as the Due Process, Equal Protection, and Supremacy Clauses of the United States Constitution. 4 In the District Court the plaintiffs maintained, inter alia, that the University’s policy created an irrebuttable presumption of non-domicile in violation of the Due Process Clause of the Fourteenth Amendment.

The University adopted, the plaintiffs argued, an irrebuttable presumption that G-4 visa holders are incapable of establishing Maryland domicile, a fact that is not always true. On the other hand, the defendant asserted that in-state status is determined by the Maryland common law of domicile, and that the very terms and conditions of a G-4 visa prohibit these nonimmigrant aliens from establishing Maryland domicile. The United States District Court, in an opinion by Judge James R. Miller, Jr., determined that there was nothing in Maryland law to prevent the plaintiffs from being domiciled in this State. It also found that the terms and conditions of a G-4 visa under federal law did not render the plaintiffs legally incapable of being domiciled here.

Relying on Vlandis v. Kline, 412 U. S. 441 , 93 S. Ct. 2230 , 37 L.Ed.2d 63 (1973), the District Court held that the University’s “In-State Policy” amounts to a constitutionally impermissible irrebuttable presumption which is not universally true. Moreno v. University of Maryland, 420 F. Supp. 541, 559-560 (D. Md. 1976). 5 The court then ordered the defendant President to allow the named plaintiffs, and others of the class, the opportunity to demonstrate that they are entitled to in-state status. The defendant took an appeal to the United States Court of Appeals for the Fourth Circuit, which affirmed the ⁴³³ District Court’s decision, Moreno v. Univ. of Maryland, 556 F. 2d 573 (4th Cir. 1977). The defendant’s petition for a writ of certiorari was granted by the Supreme Court of the United States.

There, the University President maintained that the lower federal courts were in error in concluding that under Maryland law and federal law a G-4 visa holder can become a domiciliary of this State. In addition, the President of the University defended the constitutionality of the University’s position, asking the Supreme Court to “overrule or further limit Vlandis [v. Kline, supra].” 435 U. S. at 660 . Applying the principle that decisions on constitutional issues should be avoided unless necessary, the Supreme Court expressed the view that no such showing of necessity had been made out, and that an answer to the question whether G-4 aliens were capable of becoming domiciliaries under federal law and Maryland common law might be dispositive of the case. The Court explained ( 435 U. S. at 661-662 ): “If G-4 aliens cannot become domiciliaries, then respondents have no due process claim under either Vlandis or Salfi for any ‘irrebuttable presumption’ would be universally true.

On the other hand, the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries since it has indicated both here and in the District Court that it would redraft its policy ‘to accommodate’ G-4 aliens were the Maryland courts to hold that G-4 aliens can have the requisite intent. “Accordingly, the question whether G-4 aliens have the capacity to acquire Maryland domicile is potentially dispositive of this case. Since the resolution of this question turns on federal statutory law and Maryland common law as to each of which there are no controlling precedents, we first set out the correct meaning of federal law in this area and then sua sponte certify this case to the Court of ⁴³⁴ Appeals of Maryland in order to clarify state-law aspects of the domicile question.” The Supreme Court went on to consider whether federal law prevented a person holding a G-4 visa from establishing a domicile in this State. The Court, while recognizing that generally nonimmigrant aliens may be viewed as “temporary visitors” to the United States, held that there was no legislative intent to preclude G-4 aliens from having a United States domicile. The Court stated that “it is clear that Congress did not require G-4 aliens to maintain a permanent residence abroad or to pledge to leave the United States at a date certain.” Id. at 664.

It concluded that any of the plaintiffs in this case could attain the status of a “permanent resident without difficulty.” Id. at 668. After dealing with the plaintiffs’ status under federal law, the Supreme Court then certified to us the issue of whether such persons are “incapable as a matter of state law of becoming domiciliaries of Maryland.” Id. at 669. I. In this Court, the first argument made by the defendant University President is that, irrespective of the general Maryland law of domicile, the University is authorized under state law 6 to establish such rules for tuition fees as it sees fit, and in this connection, to define “residence” as it shall determine. The University President argues that even if G-4 aliens possess the legal capacity to become Maryland domiciliaries, the school has the independent legal authority to apply a more restrictive standard which would exclude persons under G-4 visas from consideration for in-state status. 7 ⁴³⁵ In response, the plaintiffs assert that the question of the school’s authority to adopt its own standards for in-state status is not before this Court, and that the question certified for our consideration is limited to whether Maryland common law renders G-4 visa holders incapable of becoming domiciliaries of this State.

We agree with the plaintiffs in this regard. The specific question certified, in light of the Supreme Court’s opinion in this case, is whether a person covered by a G-4 visa can become, as a matter of Maryland common law, a domiciliary of this State. The question concerns the general Maryland law of domicile and not the specific authority of the University under the Education Article of the Code. This is clear from the Supreme Court’s opinion.

In setting forth its view of the dispute in this case, the Supreme Court stated ( 435 U. S. at 658-660 , emphasis supplied): “The University has consistently maintained throughout this litigation that, notwithstanding other possible interpretations of its policy statement, its ‘paramount’ and controlling concern is with domicile as defined by the courts of Maryland. It has eschewed any interest in creating a classwide exclusion based solely on nonimmigrant status or, apparently, on the fact that many G-4 aliens receive earned income that is exempt from Maryland taxation. Because petitioner makes domicile the ‘paramount’ policy consideration and because respondents’ contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by Salfi to those situations in which a State ‘purports] to be concerned with [domicile, but] at the same time denfies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue.’ Weinberger v. Salfi, 422 U. S. at 771.” ⁴³⁶ This understanding of the defendant University President’s position was based in part on the defendant’s statement that “ ‘the “In-State Policy” is structured upon and reflects [the University’s] understanding of the Maryland common law of domicile.’ ” (Emphasis supplied.) Id. at 660 n. 8. The Supreme Court’s majority opinion specifically disputed the dissent’s view of the issues in the case (which view the defendant is apparently now attempting to adopt for the first time in this Court), saying {id. at 659 n. 8, emphasis in original): “Petitioner will be surprised to learn from the dissent ... that the University’s treatment of respondents is not really determined by the Maryland common law of domicile and therefore that this case is governed by Weinberger v. Salfi, 422 U. S. 749 (1975), not Vlandis v. Kline, 412 U. S. 441 (1973).

For petitioner’s view of the University’s policy, contrary to that suggested by the dissent, has consistently been: ‘The Defendant University distinguishes between domiciliaries and nondomiciliaries of the State of Maryland____This represents a policy decision of the Board of Regents of the University, which has been implemented in the rulés and guidelines of the Policy Statement____” Record 215 (emphasis added). And again: ‘The wording of the “In-State” policy is structured so as to initially deny “in-state” status to non-immigrant aliens. This structure incorporates the determination that under the law and definition of domicile as established and applied by Maryland courts, non-immigrant aliens cannot display the intent to permanently reside within the State which is requisite to establishing Maryland domicile.’ ” A further indication that the Supreme Court was concerned with the Maryland common law of domicile is evidenced by its comment that “the University apparently has no interest in continuing tó deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries since ⁴³⁷ it has indicated both here and in the District Court that it would redraft its policy ‘to accommodate’ G-4 aliens were the Maryland courts to hold that G-4 aliens can have the requisite intent.” Id. at 661. And counsel for the University President stated in oral argument to the Supreme Court “that if the Court of Appeals of Maryland determined that a person with a G-4 visa is capable of forming the requisite intent to establish domicile, ‘the odds are reasonably high that the case would become moot because the university would change its policy, but that judgment is one that would be made by the regents ....’” Id. at 661-662 n. 13.

Based upon this examination of the Supreme Court’s opinion, it is evident that the defendant