Petition — Elkins v. Moreno

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_, Supreme Court, U. S.

@. FILED

JUL 28 1977

MICHAEL RODAK, JR., CLERK

_—_-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. €7-154 p

WILSON H. ELKINS, PREsIpDENT, UNIVERSITY OF MARYLAND,

Petitioner,

Vv.

JUAN CARLOS MORENO, Et AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCIS B. BURCH,

Attorney General

of Maryland,

Davin H. FELDMAN,

Assistant Attorney General,

Chief of Litigation,

RoBerT A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bldg.,

Baltimore, Maryland 21202,

Attorneys for Petitioner.

——

The Daily Record Co., Baltimore, Md. 21202 Sa.

INDEX

TABLE OF CONTENTS

SE SERRE ae x ene Rene aco

I ee

ID TID venncsessscscesssicetincnsistenmittnnanienins

CONSTITUTIONAL, STATUTORY AND REGULATORY

PPRUEIRIIIED TROWIG TIED ceccccccanccocnssencccnsessceccensens

GRATEDENT OF TERE CAGE .nccccccccccccccscccoscescocsescocccses

REASONS FOR GRANTING THE WRIT

II.

The treatmer.t below of the irrebuttable

presumption question raised in this case

is patentiy at odds with a series of

decisions by this Court and sharply

conflicts with decisions of other circuits

The decisions below cast a cloud on the

tuition and fee policies followed by most

public colleges and universities in the

United States, and the erroneous inter-

pretation of United States immigration

laws by the lower courts may seriously

impact on legitimate areas of federal

concern such as federal estate tax law

i ee

APPENDIX

University of Maryland, Determination of In-

State Status for Admission, Tuition, and

Charge Differential Purposes .....................0.

8 C.F.R. §214.1: Requirements for admission,

extension, and maintenance of status ..........

Moreno, et al. v. University of Maryland and Dr.

Wilson H. Elkins, President, University of

Maryland, 420 F. Supp. 541 Opinion and

Order (filed July 13, 1976) .......::sssesesereeeeees

Moreno, et al. v. University of Maryland and Dr.

Wilson H. Elkins, President, University of

Maryland — Civil Action No. M-76-691 —

Order (filed August 3, 1976) ......:.:ssesseesrees

Moreno, et al. v. Wilson H. Elkins, President,

University of Maryland and University of

Maryland, United States Court of Appeals

for the Fourth Circuit, No. 76-2049 —

Unpublished Opinion (April 28, 1977) ..........

Wilson H. Elkins, President, University of

Maryland v. Moreno, et al. — United States

Court of Appeals for the Fourth Circuit, No.

76-2049 — Order (filed May 23, 1977) ..........

Moreno, et al. v. Wilson H. Elkins, President,

University of Maryland and University of

Maryland, United States Court of Appeals

for the Fourth Circuit, No. 76-2049 — Order

(filed May 26, 1977) ............ccscsccerresrsesesssseerees

PAGE

52a

Pee ee

iii

TABLE OF CITATIONS

Cases

PAGE

Brafman v. Brafman, 144 Md. 413, 125 A. 161

SITE * sirnhcentdaiehachsilibatinas dinate hana ia, 19

Cleveland Board of Education v. LaFleur, 414

Shen Ge CED cctininsincsicasinictetinisintsines 7,9, 10,11, 12,14, 15

Dandridge v. Williams, 397 U.S. 471 (1970) ....... 18

Fiallo v. Bell, U.S. ,52L. Ed. 2d 50(1977) 14

Fisher v. Secretary of HEW, 522 F.2d 493 (7th

Gpeeb PTE - ieephicnincintoptehdeiciniaiedieacsblieiiatlealag: Mines a 14

Gurmankin v. Costanzo, 45 U.S.L.W. 2526 (3d

Cir., Apr. 25, 1977) ............... SEER oe One 15

Hein v. Burns, 402 F. Supp. 398 (S.D. Iowa 1975),

rev'd, 50 L. Ed. 2d 485 (1977) .o...cccccccccccecsceee. 10

Knebel v. Hein, U.S. , 50 L. Ed. 2d 485

BE Tee ave, oT! EN Ee ee 13, 18

Matthews v. Diaz, 426 U.S. 67 (1976) .o..ececcccces. 17,18

Mogle v. Seiver Co. School Dist., 540 F.2d 478

(10th Cir. 1976), cert. denied, USS. , 51

Pe LR Renee ae ae 14

Nyquist v. Mauclet, US. , 4 US.L.W.

I I it 5,17, 19

Salfi v. Weinberger, 373 F. Supp. 961 (N.D. Cal.

1974), rev’d 422 U.S. 749 (1975) wcceeececscecee. 10, 11

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) w.ccccccccccssesceesceceees 15

Sellers v. Ciccone, 530 F.2d 199 (8th Cir. 1976) 14,15

Shenton v. Abbott, 178 Md. 526, 15 A.2d 906

UTED :chscenidentestiieeieiiiiti bedi ala EE LAY 19

Skafte v. Rorex, 553 P.2d 830 (Colo. 1976), appeal

dismissed for want of substantial federal

question, US. , 52 L. Ed. 352 (1977).. 14

d PAGE

Stanley v. Illinois, 405 U.S. 645 (1972) ..............7, 9, 10,

11, 13, 14, 15

Starns v. Malkerson, 326 F. Supp. 234 (D. Minn.

1970), aff'd 401 U.S. 985 (1971) ..... 10, 12, 15, 16, 18

Turner v. Department of Employment Secur-

ity, US. , 46 L. Ed. 2d 181 (1975) ... 12

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

CRIED cxcscrsstitininiinntenncreenenseiaimanasnainaas 13

Vlandis v. Kline, 412 U.S. 441 (1973) ................. 4, 7,8,

9,10, 11,13, 16

Weinberger v. Salfi, 422 U.S. 749 (1975) ............ 8,9, 11,

, 12, 13, 14, 15, 16, 17, 18, 19

White v. Tennant, 31 W. Va. 790, 8 S.E. 596

CRA cuniccvertsschaviintinsinceniicitnaiiipiainnaldcaimiaganainiiaiaaian 16

Winans v. Winans, 205 Mass. 388, 91 N.E. 394

ne Ne mee . 16

Statutes, Rules and Regulations

Code of Federal Regulations:

, FY |S eee ee 4,6

a Ea 2

Rule 22 of the United States Supreme Court 2

United States Code:

Title 8

Section 1101(aX LSE) 2.0.2... ceeeeeeceeeeeseeees 21

Section 1101(aX15\G)i) and (iv) ............ 3, 6, 21

EE 3,6

SOD | cncecccsncctcocenindeneninlinduea 4,6

Title 22

, Be TIED ceccececcceesstsciniantctmmntienman 7

Title 26

eCTRaeD GND ccecccnssssccsiieciinsmncensiniiiiaamnaaae 7

Title 28 ay

Section 1343(3) and (4) .u.......ccccccccocsreesces. 6

ESS 2

Miscellaneous

89 Harv. L. Rev. 47 (1975), The Supreme Court,

SEES TE a 9,11

Jacobs, M., Law of Domicile (1887) ........c.ccc.00.... 16

Revenue Ruling (IRS) 74-364, 1974-2 C.B. 321 ... 20

IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

29 eee oe

No.

WILSON H. ELKINS, Presipent, UNIVERSITY OF MARYLAND,

Petitioner,

JUAN CARLOS MORENO, et AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, Wilson H. Elkins, President of the Univer-

sity of Maryland, prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fourth Circuit entered in this case on

April 28, 1977.

OPINIONS BELOW

The per curiam opinion of the Court of Appeals for

the Fourth Circuit, not yet reported, appears in the

Appendix to this Petition (A. 54a). The order denying

rehearing en banc, entered May 23, 1977, is also

unreported and likewise appears in the Appendix

(A. 55a). The opinion and order of the United States

District Court that resulted in the appeal to the Court of

Appeals was entered on July 13, 1976, in Moreno v.

University of Maryland, 420 F. Supp. 541 (D. Md. 1976),

and also appears in the Appendix (A. 8a).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 28, 1977. Within the time prescribed by Rule 40 of

the Federal Rules of Appellate Procedure, Petitioner

filed a petition for rehearing and suggestion for

rehearing en banc. That petition was denied by the

Court of Appeals on May 23, 1977. This petition for

certiorari is being filed within the 90 day period

provided by 28 U.S.C. §2101 and Rule 22 of the

Supreme Court. The jurisdiction of this Court is invoked

under 93 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the decisions below should have applied

Supreme Court precedents on irrebuttable presump-

tions, disregarded the principles articulated in Wein-

berger v. Salfi, 422 U.S. 749 (1975), and erroneously

concluded that the University of Maryland’s policy of

denying in-state status for tuition and fee purposes to

non-immigrants holding G-4 visas establishes an

irrebuttable presumption violative of the due process

clause of the fourteenth amendment to the United

States Constitution?

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

INVOLVED

Constitution of the United States

Amendment XIV, § 1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to

a within its jurisdiction the equal

protectiOn of the laws.

United States Code

Title 8, § 1101(a)(15)(G)(i) and (iv)

The term “immigrant” means every alien except

an alien who is within one of the following classes

of non-immigrant aliens—

« * =

(G) (i) a designated principal resident representa-

tive of a foreign goverment recognized de jure by

the United States, which foreign government is a

member of an international organization entitled

to enjoy privileges, exemptions, and immunities as

an international organization under the Interna-

tional Organizations Immunities Act (59 Stat. 669),

accredited resident members of the staff of such

representatives, and members of his or their

immediate family;

* * *

(iv) officers, or employees of such international

organizations, and the members of their immediate

families;

Title 8, § 1184(a)

(a) The admission to the United States of any

alien as a nonimmigrant shall be for such time and

under such conditions as the Attorney General

may by regulations prescribe, including when he

deems necessary the giving of a bond with

sufficient surety in such sum and containing such

conditions as the Attorney General shall prescribe,

to insure that at the expiration of such time or

upon failure to maintain the status under which he

was admitted, or to maintain any \tatus subse-

quently acquired under section 248 [§ 1258 of this

title], such alien will depart from the United States.

Title 8,°§ 1202(c)

and for alien registration shall make application

therefor in such form and manner as sha!! be by

regulations prescribed. In the application the alien

shall state his full and true name, the date and

place of birth, his nationality, the purpose and

length of his intended stay in the United States;

personal description (including height, complexion,

color of hair and eyes, and marks of identification);

his marital status; and such additional information

necessary to the identification of the applicant and

the enforcement of the immigration and national-

ity laws as may be by regulations prescribed.

Code of Federal Regulations

Title 8, §214.1

This appears in the Appendix (A. 5a).

University of Maryland In-State Policy with

Respect to Tuition and Fee Differentials—

This also appears in the Appendix (A. la).

STATEMENT OF THE CASE

Following the decision of this Court in Vlandis v.

Kline, 412 U.S. 441 (1973), the Board of Regents of the

University of Maryland adopted a new policy for the

classification of students as “in-state” or “out-of-state”’

for purposes of determining admission, tuition rates,

and charge differentials. Like most other public

institutions of higher education, the University of

Maryland bases its award of in-state status on domicile.

Because it views non-immigrant aliens as being

under a legal disability which precludes the intent to be

domiciled in Maryland, the University considers for in-

state status only “United States citizens and ...

immigrant aliens lawfully admitied for permanent

residence in accordance with the laws of the Wmited

States.” Even these individuals do not automatitafly

ee ee

qualify for the preferential, in-state tuition and charge

differential rates. The in-state policy describes eight

non-exclusive indicia of domicile which are used to

assist the University in determining a student’s status.!

(If the student himself is financially dependent on a

parent, the University looks to the status of the parent

rather than of the student in making the determina-

tion.) For students who are not United States citizens or

permanent resident aliens (or are the dependent

children of financially responsible parents holding

similar non-immigrant status), the University does not

further examine other domiciliary factors. This is

because such individuals cannot have the requisite

legal intent to establish Maryland domicile.? However,

the University recognizes that aliens who are perman-

ent resident aliens can establish domiciliary intent for

in-state purposes. Thus, permanent resident aliens can

and do qualify for the preferential rates on the same

bases as United States citizens. The in-state policy

denies preferential rates to both citizens who are not

Maryland domiciliaries and to non-immigrants who, by

definition, are not Maryland domiciliaries; it benefits

citizens who are domiciled in Maryland, as well as

permanent resident aliens who are Maryland domicil-

iaries. Thus, it is not directed at aliens per se and non-

domiciliaries, not aliens, are the only class disadvan-

taged by the policy. Compare Nyquist v. Mauclet, __

U.S. ___, 45 U.S.L.W. 4655 (June 13, 1977).

' Among the domiciliary criteria set out in the University’s

in-state policy are: presence, possession of personal and real

property, motor vehicle registration, driver’s license, voting,

and income tax payments (A. 3a-4a).

? The in-state policy defines domicile as follows:

“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...” (A. 3a).

Even non-immigrant students are not forever pre-

cluded by the University policy from qualifying for in-

state status. A financially responsible parent who

adjusts his status from non-immigrant to that of

permanent resident aliens is no longer disabled from

exhibiting the necessary domiciliary indicia. The same

is true of a non-immigrant student who becomes

financially independent for twelve months and who,

like one of the Respondents (Juan Otero), adjusts his

status to that of a permanent :esident alien. Moreover,

the University’s three-step appellate process is avail-

able to such individuals both with respect to the effect

of change in their immigration status and, subsequently,

exhibition of domiciliary indicia.

On May 27, 1975, Respondents, undergraduate

students at the University of Maryland, brought suit for

declaratory and injunctive relief in the United States

District Court for the District of Maryland against the

University and its President, Dr. Wilson H. Elkins,

alleging jurisdiction under 28 U.S.C. § 1343(3) and (4).

These financially dependent students were non-

immigrant aliens who held G-4 visas,’ as did their

>A “G-4 alien” is one class of non-immigrants; it

consists of aliens who are “officers, or employees of...

international organizations . . . and the members of their

immediate families.” 8 U.S.C. § 1101(a)15’G\iv). A G-4 non-

immigrant is admitted to the United States “for such time

and under such conditions as the Attorney General may be

regulations prescribe.” 8 U.S.C. § 1184(a).

Pursuant to the regulations for the admission of non-

immigrant aliens into the United States, a non-immigrant

such as the holder of a G-4 visa must agree “that he will

abide by all the terms of and conditions of his admission or

extension and that he will depart at the expiration of the

period of his admission or extension or on abandonment of

his authorized non-immigrant status.” 8 C.F.R. §214.1. In

addition, an alien applying for a non-irimigrant visa must

state under oath on his application “the purpose and length

of his intended stay in the United States.” 8 U.S.C. § 1202(c).

Thus, entitlement to G-4 non-immigrant status by a person

and his family is derived from the circumstances of that

= LN REPT TENS eT LET a NTT ee Se lilt

fathers, who were employed by certain international

organizations based in Washington, D.C., viz., the

Inter-American Development Bank (IDB) and the

International Bank for Reconstruction and Develop-

ment (World Bank). In particular, the students chal-

legned, as violative of the due process and equal

protection clauses of the fourteenth amendment to the

United States Constitution, the University’s policy of

denying in-state status for tuition and charge differen-

tial purposes to holders of G-4 visas or those who are

financially dependent on persons holding such non-

immigrant status.

Following a hearing on April 9, 1976, the district

court, on July 13, 1976, held that the University’s in-

state policy as applied to G-4 aliens created an

impermissible irrebuttable presumption in violation of

the due process clause of the fourteenth amendment.

The court said that by the use of a presumption of non-

domicile for G-4 aliens, the University denied Respond-

ents the opportunity to demonstrate that they were

entitled to in-state status for purposes of tuition and

charge differentials. Relying on Viandis v. Kline, supra;

Stanley v. Illinois, 405 U.S. 645 (1972); and Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974), the

court held that this irrebuttable presumption of non-

domicile, because it was not (according to the court)

universally true and because the University had a

alien’s employment with an international organization, and

such status with its attendant permission to remain in the

United States would terminate at any time that the

employment with an international organization ceases.

Under federal law, employees of the IDB and the World

Bank who hold G-4 visas are the beneficiaries of various

privileges and immunities, including exemption from federal

and state income tax levies. Articles of Agreement of the

International Bank for Reconstruction and Development, 60

Stat. 1440, T.1LA.S. No. 502; Agreement Establishing the

Inter-American Development Bank, 10 U.S.T. 3029, T.1LA.S.

No. 4397; 22 U.S.C. § 288(d); 26 U.S.C. § 893(a).

reasonable alternative means of making a domicile

determination for holders of G-4 visas (viz., the appeals

process), could not be justified on the basis of cost

equalization or administrative convenience. Ignored by

the court was any discussion of or reference to

Weinberger v. Salfi, 422 U.S. 749 (1975), which cut back

sharply on the application of the cited cases; nor did

the court attempt to apply the principles of Sa/fi or to

distinguish the present case from Viandis. Because the

district court decided the case on due process grounds, it

did not rule on the students’ equal protection or

supremacy clause claims. The court enjoined the

University’s President (the University itself was dis-

missed as a party) from denying Respondents and

members of their class in-state status “solely because

they or their parents” hold G-4 vis is.°

On July 31, 1976, an appeal was noted. Before the

Fourth Circuit, Petitioner contended that the principles

of Salfi and subsequent “irrebuttable presumption”

decisions of this Court warranted reversal. Neverthe-

less, in a per curiam opinion, dated April 28, 1977, the

Fourth Circuit affirmed the district court, eschewed any

discussion of or reference to Salfi and its progeny, and

in effect adopted the opinion of the district court. A

timely petition for rehearing by the full court was filed,

and denied on May 23, 1977. On May 26, 1977, upon

Petitioner’s motion, the Fourth Circuit stayed its

mandate pending application to this Court for a writ of

certiorari (A. 56a).

‘ Neither party called the case to the attention of the

district court.

> On August 3, 1976, in response to Petitioner’s motion, the

district court stayed those portions of its final order which

granted declatory and injunctive relief (A. 52a).

Ps ee ee ee ee

REASONS FOR GRANTING THE WRIT

THE TREATMENT BELOW OF THE IRREBUTTABLE PRE-

SUMPTION QUESTION RAISED IN THIS CASE IS PATENTLY AT

ODDS WITH A SERIES OF DECISIONS BY THIS COURT AND

SHARPLY CONFLICTS WITH DECISIONS OF OTHER CIRCUITS.

Petitioner submits that the opinion filed by the Court

of Appeals, as well as the district court view it adopts

on the irrebuttable presumption doctrine, is flatly

contradicted by what is fast becoming a long line of

decisions by this Court and conflicts with conclusions

reached in at least three other circuits.

The decisions below hold that decisions of this Court

mandate that every irrebuttable presumption not

universally true in fact is unconstitutional (A. 41a).

Applying this now discredited principle (see Weinberger

v. Salfi, 422 U.S. 749, 781 (1975); The Supreme Court,

1974 Term, 89 Harv. L. Rev. 47, 78 (1975)), the district

court opinion adopted by the Fourth Circuit concluded

that neither the Maryland law of domicile nor United

States immigration law precluded a G-4 alien from

acquiring a state domicile. Hence, according to its

reasoning, the University, although perhaps correct in

its interpretation of the law of domicile with respect to

other categories of non-immigrants, had adopted a not

universally true or invalid measure of domicile with

respect to G-4’s. In arriving at this conclusion, the

opinion relied on three cases to support its view that the

application of the University’s in-state policy to G-4

aliens created an unconstitutional irrebuttable pre-

sumption: Vlandis v. Kline, 412 U.S. 441 (1973); Stanley

v. Illinois, 405 U.S. 645 (1972); and Cleveland Board of

Education v. LaFleur, 414 U.S. 632 (1974).

In Vilandis, in a deeply split decision, this Court held

that a “permanent” irrebuttable presumption of non-

residence was created by a Connecticut policy which

established that an out-of-state applicant for admission

to a public college could not adjust to in-state status for

the entire period of his attendance at the school, when

that presumption was not universally true in fact. The

Viandis opinion carefully distinguished prior cases

relating to in-state/out-cf-state tuition differentials,

most particularly, Starns v. Malkerson, 326 F. Supp.

234 (D. Minn. 1970), aff’d. 401 U.S. 985 (1971). Starns

upheld Minnesota’s requirement that no student is

eligible for in-state status for tuition purposes unless he

has been a bona fide domiciliary of the state for at least

one year. The Viandis court noted that under this

scheme the presumption of non-residency was tempor-

ary and that the student could rebut it after having

lived in the state one year, by presenting other

sufficient evidence to show bona fide domicile within

the state. 412 U.S. at 452. In Stanley, this Court struck

down an administrative presumption that an unwed

father was unfit to have custody of his children, and in

LaFleur it held that a Board of Education rule

presuming maternal incapacity for a set period during

pregnancy and after childbirth created an unconstitu-

tionally impermissible irrebuttable presumption.

Just as many lowcr courts did up to 1975,® the lower

courts in the instant case read these three cases to

stand for the proposition that any legislative or

administrative classification that could be stated in the

form of a presumption was unconstitutional if the

presumption was not universally or necessarily true.

Under such a rule, the lower courts felt under no

constraint to limit Viandis to its facts, to recognize that

the presumption at issue in this case was not “perman-

ent” like the one condemned in Vilandis, or to distin-

6 See. e.g., Salfi v. Weinberger, 373 F. Supp. 961, 965 (N.D.

Cal. 1974), rev’d, 422 U.S. 749 (1975); Hein v. Burns, 402 F.

Supp. 398 (S.D. Iowa 1975), rev’d, 50 L. Ed. 2d 485 (1977).

Wee ee errr oe r

OE Ce PTR

guish LaFleur or Stanley as involving classifications

affecting fundamental rights.

Even at its zenith the irrebuttable presumption

doctrine was never able to command more than a

fragile majority of this Court’s justices and met with

the near universal condemnation of commentators’? who

contended that the doctrine was merely an excuse to

apply “strict scrutiny” equal protection analysis.

Finally, in 1975, in Weinberger v. Salfi, supra, this

Court sharply and properly curtailed the application of

the irrebuttable presumption doctrine. Saifi involved a

challenge to a Social Security Act provision which

limited eligibility for survivors’ benefits to persons

whose relationship with the insured began at least nine

months before his death. The plaintiffs contended that

the nine-month duration-of-relationship requirement

created an impermissible irrebuttable presumption that

short-lived marriages were a sham aimed at obtaining

benefits and that the plaintiffs should be given an

opportunity to demonstrate the bona fide nature of their

relationship with the insured. The trial court, like the

lower court in the present case, felt it was unnecessary

to demonstrate how Vlandis, LaFleur, and Stanley

applied to the challenged statute. Instead, the district

court in Salfi merely asserted that these decisions

mandated the invalidation of every legislative presump-

tion that was not universally or necessarily true in fact.

Salfi v. Weinberger, supra; 89 Harv. L. Rev. at 78 n.16.

However, on appeal, this Court rejected such a

superficial analysis. Stanley and LaFleur were distin-

guished on the grounds that they involved basic civil

’ Note, The Irrebuttable Presumption Doctrine in the

Supreme Court, 87 Harv. L. Rey. 1534 (1974); Note, The

Conclusive Presumption Doctrine: Equal Process or Due

Protection?, 72 Mich. L. Rev. 800 (1974); Note, Irrebuttable

— An Illusory Analysis, 27 Stan. L. Rev. 449

975).

rights and due process liberties, such as the right to

raise one’s children and the right to personal choice in

matters of marriage and family life. 422 U.S. 771.°

Rather than relying on anything said in Vlandis, the

Court based its decision on Starns:

“As in Starns v. Malkerson,. . . the benefits here

are available upon compliance with an objective

criterion, one which the Legislature considered to

bear a sufficiently close nexus with underlying

policy objectives to be used as the test for

eligibility. Like the plaintiffs in Starns, appellees

are completely free to present evidence that they

meet the specified requirements; failing in this

effort, their only constitutional claim is that the

test they cannot meet is not so rationally related to

a legitimate legislative objective that it can be used

to deprive them of benefits available to those who

do satisfy that test.” Jd. at 772 (citation omitted).

Most significantly, the fact that the “presumption” at

issue was not universally true did not aid the plaintiffs’

case;

“(Undoubtedly [the statute] excludes some surviv-

ing wives who married with no anticipation of

shortly becoming widows, and it may be that

appellee Salfi is among them... .

“While it is possible to debate the wisdom of

excluding legitimate claimants in order to discour-

age sham arrangements, we think it clear that

Congress could rationally choose to adopt such a

course.” Id. at 781.

8 In Turner v. Department of Employment Security,

US. , 46 L. Ed. 2d 181 (1975), a case decided after Sa/fi, .

this Court in a per curiam opinion struck down a Utah

creating a presumption of maternal incapacity “virtua

identical to the presumption found unconstitutional” in

LaFleur. However, the Court was careful to adopt the

limitations on the irrebuttable presumption doctrine set out

in Salfi. (“The Fourteenth Amendment requires that .. .

[states] must achieve legitimate state ends through more

individualized means when basic human liberties are at

stake.” 46 L. Ed. 2d at 184 (emphasis added).

Finally, sounding the death knell for any expansion

of the irrebuttable presumption doctrine, this Court

said:

“We think that the District Court’s extension of

the holdings of Stanley, Viandis and LaFleur to

the eligibility requirement in issue here would turn

the doctrine of those cases into a virtual engine of

destruction for countless legislative judgments

which have heretofore been thought wholly consist-

ent with the Fifth and Fourteenth Amendments to

the Constitution.” Jd. at 772.

And Salfi was just the beginning of what is now a

long line of this Court’s cases that refuse to apply

Viandis and its progeny, or reverse decisions which

applied the doctrine in the fashion of the district court

opinion adopted by the Fourth Circuit here.

In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

(1976), this Court overturned the decision of a three-

judge federal court that Vlandis and Stanley mandated

the unconstitutionality of a statutory irrebuttable

presumption of total disability for miners due to black

lung disease based on clinical evidence of a complicated

stage of the disease. In so doing, the Court relied on

Salfi and noted that the mere fact that the statute was

phrased in terms of an irrebuttable presumption would -

not invalidate the statute “when its operation and effect

are completely permissible.” 49 L. Ed: 2d at 771.

In Knebel v. Hein, US. , 50 L. Ed. 2d 485

(1977), the Court overturned a three-judge court’s

determination that a federal food stamp regulation that

disallowed a deduction for transportation expenses in

connection with job training for purposes of computing

a recipient’s income was unconstitutional as violative

of the irrebuttable presumption doctrine. Although the

Court noted that “the District Court was correct that

the regulations operate somewhat unfairly in appellee’s

case,” it stated that they did not embody an irrebuttable

presumption. 50 L. Ed. 2d at 491.

In Skafte v. Rorex, 553 P.2d 830 (Colo. 1976), appeal

dismissed for want of substantial federal question,

USS. , 52 L. Ed. 2d 352 (1977), the Court summarily

disposed of a resident alien’s contention that a state

ban against voting by aliens created an irrebuttable

presumption.

And in Fiallo v. Bell, USS. , 52 L. Ed. 2d 50

(1977) the Court rejected an irrebuttable presumption

challenge to a federal statute that granted preferential

immigration status to unwed fathers and their illegiti-

mate offspring who were permanent resident aliens but

not to non-immigrants, despite the obvious fact that the

challenged classification, like those at issue in Stanley

and LaFleur, affected fundamental freedoms of choice

in matters of marriage and family life.

Other circuit courts of appeals were quick to perceive

that the irrebuttable presumption doctrine was on the

descendancy. In Mogle v. Seiver County School Dist.,

540 F.2d 478 (10th Cir. 1976), cert. denied, USS. '

51 L. Ed. 2d 572 (1977), the Tenth Circuit, in reliance

upon Salfi, held that in a case challenging a residency

requirement for teachers, “we do not feel the conclusive

presumption doctrine was intended to apply. The

Supreme Court has disapproved extention of the

doctrine which would make it destructive of numerous

legislative judgments drawing lines.” 540 F. 2d at 485.

In Sellers v. Ciccone, 530 F.2d 199 (8th Cir. 1976), the

Eighth Circuit upheld the exclusion of long-term

inmates from prison training programs, primarily on

the basis of Salfi. 530 F.2d at 202. And in Fisher v.

Secretary of HEW, 522 F.2d 493 (7th Cir. 1975), the

Seventh Circuit upheld the validity of Social Security

Act presumptions with respect to coverage of domestic

servants, stating:

“As noted by Mr. Justice Rehnquist in his

dissent in LaFleur, almost any law could be in

some sense characterized as an irrebuttable pre-

sumption. In the normal case, well established

standards of equal protection and due process

should be applied to determine the validity of a

Congressional enactment. It is only an unusual

case where a statute will be declared invalid

because of an improper irrebuttable presumption,

and the same result would not be reached applying

normal equal protection and due process stand-

ards.” Id. at 504

This wealth of authority was ignored by the Fourth

Circuit.°

Petitioner does not contend that the irrebuttable

presumption doctrine has been officially overruled; nor

does it ask the Court to do so at the present time, unless

the Court deems it appropriate to a decision in favor of

Petitioner in this case.’’ He argues principally that this

is not the “unusual case” warranting the rigid and

mechanistic application of the doctrine.

Basic human liberties and fundamental constitu-

tional rights are not at stake in this case. Public

education is not a right secured by the United States

Constitution. San Antonio Independent School District

v. Rodriguez, 411 U.S. 1 (1973); Starns v. Malkerson,

supra at 238. And state regulation of entitlement to

education falls in the category of the social welfare

legislation reviewed in Salfi. T>us, contrary to the

holding of the lower courts, LaFleur and Stanley have

no application here.

° The Third Circuit has joined the Fourth Circuit in

perpetuating a faulty analysis of irrebuttable presumptions.

In Gurmankin v. Costanzo, 45 U.S.L.W. 2526 (3d Cir., Apr.

25, 1977), it applied LaFleur to a case where no “constitu-

tional right was involved” and rejected Sa/fi as applying

only in government benefit cases.

‘© This Court may very well conclude that under Salfi and

its progeny the irrebuttable presumption doctrine no longer

has any force except, perhaps, where a classification affect-

ing fundamental constitutional rights is involved.

1€

Secondly, the classification at issue in this case, even

assuming it is regarded as a presumption, does not fall

within the prohibitions of Vlandis, because it is not

permanent. Unlike the students in Viandis, who could

never qualify for in-state status, Respondents in this

case do have the opportunity to qualify. If their parents

alter their status to that of a permanent resident alien

or if the students similarly alter their status and

become financially independent, Respondents will be

able to qualify for in-state status on the same basis as

all other persons who may be domiciled in Maryland.

Like the plaintiffs in Starns, who after one year of

disability could present evidence of domiciliary intent,

the students in this case, after they or their parents

alter their immigration status to that of permanent

resident alien, can present evidence of domiciliary

intent necessary to qualify for in-state status. Nor can it

be said that the University’s in-state policy speaks in

terms of domicile but signifies otherwise in the case on

non-immigrants — no more than Minnesota’s policy in

Starns of establishing a one-year restriction on demon-

strating domicile can be said to be an unconstitutional

“invalid measure of domicile” because a respectable

body of law holds that physical presence for a moment

in a particular place may be enough to establish

domicile. See White v. Tennant, 31 W. Va. 790, 8 S.E.

596 (1888); Winans v. Winans, 205 Mass. 388, 91 N.E.

394 (1910); M. Jacobs, Law of Domicile, § 134 (1887).

However, even if Respondents in this case may in fact

be Maryland domiciliaries, like the out-of-state students

in tarns who may have been domiciliaries before the

lapse of one year or the widow in Salfi who may have

entered into a bona fide marriage without regard to

obtaining Social Security benefits, it is clear that Salfi

does not require that the allegedly presumed fact be true

in every case.

Thirdly, the interests asserted by Petitioner in

support of the challenged in-state policy are entirely

sufficient in light of the mere rational basis required by

Salfi. The line drawn by the University between

permanent resident aliens and non-immigrants is

identical to that sustained by this Court in Matthews v.

Diaz. 426 U.S. 67 (1976). In Diaz, the Court upheld a

scheme which denied Medicare benefits to non-

immigrants, but offered them to citizens and permanent

resident aliens (the very same class potentially bene-

fited in the instant case) on the rational basis that the

amount of Medicare benefits was not limitless and that

Congress could draw the line at citizens and permanent

resident aliens because as a class they could be

expected to have a greater affinity to the United States.

Lest this case be distinguished as one involving the

federal government’s plenary control over aliens, the

Court in Diaz noted that the only reason state exclusion

of some aliens from benefits could not be justified is

because the states invariably treated out-of-staters and

aliens differently. Such a defect is not present in the

University’s in-state policy. Both out-of-staters and non-

immigrants are denied in-state status. For these same

reasons, Nyquist v. Mauclet, U.S. , 45

U.S.L.W. 4656 (June 13, 1977), is inapplicable. There, a

five-Justice majority of this Court applied a strict

scrutiny equal protection analysis to strike down a state

educational benefits scheme which denied assistance to

permanent resident aliens. In so doing, the majority of

the Court noted that the statute was “directed at aliens

and... only aliens are harmed by it.” 45 U.S.L.W. at

4657. On the contrary, the University’s in-state policy

benefits the precise class disadvantaged in Mauclet and

is directed at and disadvantages only non-domiciliaries,

a class which includes some United States citizens as

well as some aliens.

The limitation of governmental expenditures to those

with a greater affinity, a theory which supported the

classifications at issue in Diaz and Starns, was the

primary rationale proffered by the University in

support of its in-state policy. In Diaz, this Court noted

the reasonableness of the presumption said to be at

issue here, the difficulty of line-drawing for purposes of

entitlement to government benefits, and the obvious

fact that “some persons who have an almost equally

strong claim to favored treatment” are placed on

different sides of the line. 426 U.S. at 83. Citing Salfi

and Dandridge v. Williams, 397 U.S. 471 (1970), this

Court said, “When this kind of policy choice must be

made, we are especially reluctant to question the

exercise of Congressional judgment.” 426 U.S. at 84. It

is this kind of rational judgment which the lower courts

struck down in the present case.

As further justification for the challenged feature of

the in-state policy, Petitioner points to the administra-

tive difficulties attendant to affording full blown

hearings on domiciliary indicia (many wth interpre-

ters) to non-immigrants,'' and the prevention of

disparate treatment among classes of non-immigrants.

See Knebel v. Hein, supra, 50 L. Ed. at 492.'?

1! Of course, the University has afforded hearings to non-

immigrants on the “objective criterion,” Weinberger v. Salfi,

422 U.S. at 772, of whether or not they have adjusted their

status to permanent resident alien.

12 Respondents below argued that of all the categories of

non-immigrants, G-4’s alone were not legally precluded from

establishing a Maryland domicile. To recognize such a

position and elevate it to constitutional dimensions, would

mean that perhaps the wealthiest and most privileged

categories of non-immigrants would be given more advan-

tage at the University’s expense over the less affluent non-

immigrant citizens, e.g., the holders of student visas. See

Senate Report No. 94-1009, Foreign Assistance and Related

Programs Appropriation Bill, 1977 (94th Congress 2d

Session) at 10405; and “University of Maryland — Possible

Adjustments of Tuition and Other Charges,’ Annex No. 1 to

Petitioner’s reply brief in the Fourth Circuit, which indicates

that World Bank employees are reimbursed for tuition

proposals made to the University on behalf of their children.

EF AO eee ee ep

In summary, Petitioner contends that the decisions

below improperly permitted the irrebuttable presump-

tion doctrine to become an “engine of destruction” for a

rationally based classification, Weinberger v. Salifi,

supra at 772, that the lower courts should never have

required the challenged feature of the University’s in-

state policy to be “universally true in fact,” and that

review by this Court is necessary because the lower

court decisions sharply conflict with opinions of this

Court and of other courts of appeals.

Il.

THE DECISIONS BELOW CAST A CLOUD ON THE TUITION

AND FEE POLICIES FOLLOWED BY MOST PUBLIC COLLEGES

AND UNIVERSITIES IN THE UNITED STATES, AND THE

ERRONEOUS INTERPRETATION OF UNITED STATES IMMI-

GRATION LAWS BY THE LOWER COURTS MAY SERIOUSLY

IMPACT ON LEGITIMATE AREAS OF FEDERAL CONCERN

SUCH AS FEDERAL ESTATE TAX LAW.

The dividing line adopted by the University of

Maryland in its in-state tuition and fee policy between

permanent resident aliens and non-immigrants is one

adopted by most public colleges and universities in the

United States. Most of these schools, like Maryland,

have conlcuded that non-immigrants, who have decided

not to become permanent resident aliens, are legally

precluded from acquiring a domicile in their respective

jurisdictions.'? Moreover, this seemingly rational con-

clusion was echoed by this Court in Nyquist v. Mauclet,

supra, when it noted:

“Since many aliens, such as those here on

student visas, may be precluded by federal law

‘3 The definition of domicile under Maryland law as the

“place where a man has his true, fixed, permanent home,”

Shenton v. Abbott, 178 Md. 526, 15 A.2d 906, 908 (1946), and

as “residence at a particular place accompanied by positive

or presumptive proof of the intention to remain there for an

unlimited time,” Brafman v. Brafman, 144 Md. 413, 414, 125

A. 161 (1924), would by its terms seem to preclude those who

are not permanent resident aliens from acquiring domicile.

from establishing a permanent residence in this

country, see, e.g., 8 U.S.C. §110l(aX15\ Fi); 22

C.F.R. § 41.45 (1976), the bar. . . [presented by the

New York statute]. . . is of practical significance

only to resident aliens.” 45 U.S.L.W. at 4656.

However, the lower courts here have abandoned the

natural import of the law of domicile and the plain

meaning of various provisions in the immigration law

and regulations,'* to conclude that it is not universally

true in fact that G-4’s cannot acquire a state domicile.

The effect of this ruling cannot be minimized. The

Fourth Circuit’s blurring of the in-state’ out-of-state

dividing line can only have an adverse effect on the

tuition and fee policies of already financially strapped

public institutions of higher education. In addition, the

decisions below may affect federal tax law. The

Internal Revenue Service has held that the non-

domiciliary rate should be applied to the estates of G-4

aliens, reasoning that:

“The acceptance by the decedent of the prescribed

terms for his admission to and stay in the United

States, as required by Federal law and regulations

relating to immigration and nationality, created a

legal disability that rendered him incapable of

forming the intention necessary for the establish-

ment of a domicile here, as required by section 20.0-

1 of the Estate Tax Regulations. This legal

disability continued to exist until the time of

decedent’s death since he was still in the United

States as an employee of an international organi-

zation holding a G-4 visa.” Rev. Rul. 74-364, 1974-2

C.B. 321.

The decisions below, in effect, have held that the IRS is

incorrect.

Although Respondents sought to minimize below the

effect of the district court’s overemphasis on the

absence in the immigration law of a requirement that a

G-4 visa holder “not abandon his homeland,” compare

'4 See pp. 6-7, supra.

8 U.S.C. §1101(aX(15\F) with §1101(a\15)(G)iv), noth-

ing can disguise the hole in the court’s analysis. The

framers of 8 U.S.C. § 1101 found no need to spell out the

requirements of non-abandonment of homeland for non-

immigrants who were obviously destined for a tempor-

ary stay in the United States keyed to their employ-

ment. Under the lower courts’ superficial analysis of

1101(aX(15), diplomats (A), foreign press (I), alien

crewmen (D), and even aliens in transit (C), are not

prevented from obtaining a domicile in the United

States. Petitioner suggests that such a reading is

potentially limitless both in theory and in costs to

public colleges and universities, not to say to the federal

fisc.

7 ‘2

CONCLUSION

In summary, Petitioner submits that review should be

granted to lay to rest a fundamental misapplication of

the irrebuttable presumption doctrine (and that doctrine

too if need be). The lower courts read that doctrine to

mean that even if the University was generally and

nearly universally correct in its legal interpretation of

federal law and the law of domicile, it was constitution-

ally wrong. According to the decisions below, the

doctrine still demands absolute perfection on the part of

state classifications. Review is also warranted to rectify

a fundamental misreading of federal law which may

seriously impact on the fiscal affairs of public colleges

and universities, as weil as those of the federal

government.

Respectfully submitted,

FRANCIS B. BuRCH,

Attorney General

of Maryland,

Davip H. FELDMAN,

Assistant Attorney General,

Chief of Litigation,

RoBertT A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bidg.,

Baltimore, Maryland 21202,

Attorneys for Petitioner.

APPENDIX

UNIVERSITY OF MARYLAND

DETERMINATION OF IN-STATE STATUS

FOR ADMISSION, TUITION, AND

CHARGE-DIFFERENTIAL PURPOSES!

An initial determination of in-state status for admis-

sion, tuition, and charge-differential purposes will be

made by the University at the time a student’s

application for admission is under consideration. The

determination made at that time, and any determina-

tion made thereafter, shall prevail in each semester

until the determination is successfully challenged prior

to the last day available for registration for the

forthcoming semester. A determination regarding in-

state status may be changed for any subsequent

semester if circumstances, as later defined, warrant

redetermination.

In those instances where an entering class size is

established and where an application deadline is stated,

in-state conditions for admissions must be satisfied as

of the announced closing application date.

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.

| Draft of August 31, 1973 as amended on September 7,

1973. Approved by the Board of Regents on September 21,

1973 to become effective with any term of the University

beginning on or after January 1, 1974.

b. Where a student is financially independent for at

least the preceding twelve months, and provided

the student has maintained his domicile in

Maryland for at least six consecutive months

immediately prior to the last day available for

registration for the forthcoming semester.

c. Where a student is the spouse or a dependent

child of a full-time employee of the University.

d. Where a student who is a member of the Armed

Forces of the United States is stationed on active

duty in Maryland for at least six consecutive

mcutns immediately prior to the last day

available for registration for the forthcoming

semester, unless such student has been assigned

for educational purposes to attend the University

of Maryland.

e. Where a student is a full-time employee of the

University of Maryland.

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.

3. Each campus of the University will be responsible

for making the in-state determination for the prospec-

tive or enrolled student.

4. In-state status is lost at any time a financially

independent student establishes a domicile outside the

State of Maryland. If the parent(s) or other persons

through whom the student has attained in-state status

establishes a domicile in another state, the student

shall be assessed out-of-state tuition and charges six

months after the out-of-state move occurs.

5. The terms of this policy will not be applied

retroactively.

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.

ee ee FP CURES = TE Ng rere URE geen me ee

ORET Cag TERE ae oo ome oo

Conversely, a student is financially independent if he

declares himself so, if he receives less than half of his

support from any other person or persons and if he does

not appear as a dependent on the federal or state

income tax return of any other person.

2. A parent includes a natural parent, an adoptive

parent, a legally-appointed guardian, and a person who

stands in loco parentis to the student.

3. A spouse is a partner in a legally contracted

marriage.

4. A domicile is a person’s permanent place of

abode; namely, there must be demonstrated an inten-

tion to live permanently or indefinitely in Maryland.

For purposes of this policy only one domicile may be

maintained at a given time.

5. The masculine gender of personal pronouns

includes the feminine gender.

Application

1. A student requesting redetermination to in-state

status who asserts that he is financially dependent

upon a parent(s) or spouse domiciled in Maryland, as

previously defined, will be required to produce by

affidavit, in addition to other proof, documentation of

the student’s earnings for the year immediately

preceding the last day of registration for the semester

for which the determination is requested. Such docu-

mentation shall include relevant income tax returns,

statements from employers, and/or federal and state

withholding forms. An affidavit showing all expenses

of the student for the same period must also be

submitted.

2. A student requesting redetermination to in-state

status who asseris that he is financially independent

will be required to present by affidavit documentation

cited in paragraph 1.

3. In determining domicile, the University shall take

into consideration, but shall not be limited to, the

following criteria as they pertain to the individual case:

a. Own or rent and occupy real property in

Maryland as one’s domicile on a year-around

basis.

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.

N.B. The documentation offered in these instances

may be required to be in affidavit form.

Appeals

A student who disagrees with his classification may

request a personal interview with a campus classifica-

tion officer or his designee at which time the student

will have an opportunity to present any and all

evidence he may have bearing on his classification and

to answer any questions which have been raised about

his status. A student may further file a written appeal

from the campus classification officer or his designee to

the Intercampus Review Committee (IRC). If the

decision of the IRC is adverse to him, a student may

further file a written appeal to the Office of the

President of the University. The decision of the

President of the University or his designee shall be

final.

Implementation

The implementation of this new policy to those

eligible for redetermination will require an extended

SS —

period of time. It is hoped that a decision in each case

will be made within ninety (90) days of a request for

redetermination. During this period of time, or any

further period of time required by the University, fees

and charges based on the previous determination must

be paid. If the determination is changed, any excess

fees and charges will be refunded.

x * * * * *

NOTE: The deadline for meeting all requirements for an in-

state status and for submitting all documents for reclassifica-

tion is the last day of late registration for the semester the

student wishes to be classified as an in-state student.

CODE OF FEDERAL REGULATIONS

Title 8, §214.1 Requirements for admission,

extension, and maintenance of status.

(a) General. Every nonimmigrant alien applicant for

admission or extension of stay in the United States

shall establish that he is admissible to the United

States or that a ground of inadmissibility has been

waived under section 212(d)(3) of the Act; present a

passport upon admission and only when requested in

connection with an extension of stay, valid for the

period set forth in section 212(a)(26) of the Act, except

as otherwise provided in this chapter, and, upon

admission, a valid visa, except when either or both

documents have been waived; agree that he will abide

by all the terms and conditions of his admission or

extension, and that he will depart at the expiration of

the period of his admission or extension or on

abandonment of his authorized nonimmigrant status,

and post a bond on Form I-352 in the sum of not less

than $500 if required by the district director, special

inquiry officer, or the Board of Immigration Appeals at

the time of admission or extension, to insure the

maintenance of the alien’s nonimmigrant status and

his departure from the United States. A nonimmigrant

whose visa has been automatically revalidated pursu-

ant to 22 CFR 41.125(f) shall, if otherwise admissible, be

readmitted for a period not to exceed the unexpired .

period of his initial admission or extension of stay

which had been authorized by the Service prior to his

departure to foreign contiguous territory or adjacent

islands, as endorsed by the Service on the Form I-$*

issued in connection with the returning nonimmigrant’s

prior admission or stay and presented by him, or as

endorsed by the issuing school official or program

sponsor on Form I-20 or DSP-66 presented by a

returning nonimmigrant as defined in paragraph (F) or

(J) of section 101(a)(15) of the Act. A nonimmigrant

other than one in the classes defined in section

101(a)(15)(A) (i) or (ii) or (G) (i), (ii), (iii), or (iv) of the Act

(members of which classes are not required to obtain

extensions of stay if they continue to be so recognized

by the Secretary of State as members of such classes);

section 101(a)(15)(B) who is visiting the United States

temporarily for pleasure and section 101(a)(15) (C), (D),

or (K) of the Act (members of which classes are

ineligible for extensions of stay); or section 101(a)(15)

(F) or (J) of the Act, and whose period of admission has

not expired, shall apply on Form I-539 and may be

granted or denied, without appeal, an extension of his

period of temporary admission by an officer in charge

of a suboffice or a district director. A separate

application must be executed and submitted for each

alien seeking an extension of temporary stay; however,

regardless of whether they accompanied the applicant

to the United States, the spouse and minor, unmarried

children of any applicant who have the same nonimmi-

grant classification may be included in his application

and may be granted the same extension without fee. If

failure to file a timely application is found to be

excusable, an extension may be granted from the time

of expiration of authorized stay. When because of

reasons beyond his control, or special circumstances, an

alien needs an additional period of less than 30 days

beyond his authorized stay within which to effect his

departure, he may be granted such time without filing

an application for extension. Extensions to members of

a family group shall be for the same period; if one

member is eligible for only a six-month extension and

another for a twelve-month extension, the shorter

period shall govern. For procedures relating to cancella-

tion or breaching of bonds, see Part 103 of this chapter.

(b) Termination of status. Within the period of

initial admission or extension of stay, the nonimmi-

grant status of an alien shall be terminated by the

revocation of a waiver previously authorized in his

behalf under section 212(d) (3) or (4) of the Act; or by the

introduction of a private bill to confer permanent

resident status on such alien.

States in a class defined in section 101(a)15)(B) of the

Act as a temporary visitor for pleasure, or section

101(aX(15\C) of the Act as an alien in transit through

this country, may no* engage in any employment. Any

other nonimmigrant in the United States may not

engage in any employment unless he has been accorded

a nonimmigrant classification which authorizes em-

ployment or he has been granted permission to engage

in employment in accordance with the provisions of

this chapter. A nonimmigrant who is permitted to

engage in employment may engage only in such

employment as has been authorized. Any unauthorized

employment by a nonimmigrant constitutes a failure to

maintain status within the meaning of section 241(a)9)

of the Act.

OPINION

(Filed July 13, 1976)

United States District Court,

D. Maryland.

Civ. A. No. M-75-691

Juan Carlos Moreno et al.,

Plaintiffs,

University of Maryland and

Dr. Wilson H. Elkins, President,

University of Maryland,

Defendants.

(420 F. Supp. 541)

JAMES R. MILLER, Jr., District Judge.

Opinion and Order

This is a purported class action suit in which the

named plaintiffs, Juan Carlos Moreno, Juan Pablo

Otero, and Clare B. Hogg, seek declaratory and

injunctive relief against the defendants, the University

of Maryland and Dr. Wilson H. Elkins, its president.

Both sides have filed motions for summary judgment.

The named plaintiffs are currently students at the

University of Maryland, College Park campus, who

reside in the State of Maryland with their parents, upon

whom they are financially dependent. Plaintiffs’

fathers all hold nonimmigrant alien visas issued

pursuant to 8 U.S.C.A. §1101(a)(15\(G)iv)! [G-4 visas].

i Title 8, U.S.C., §1101(a\15\G)iv) defines as one class of

non-immigrant alien those aliens who are “officers, or

employees of such international organizations [those entitled

As employees of certain international organizations

created under international agreements to which the

United States is a party, the plaintiffs’ fathers are

exempted from state and federal taxes on salaries paid

by these organizations.’

Under policies adopted by the Board of Regents of the

University of Maryland effective for any term of the

University beginning on or after January 1, 1974,

(hereinafter referred to as the “In-State Policy”),

students are divided into two classes, i.e., “in-state” or

resident on the one hand and “out-of-state” or non-

resident on the other, for purposes of determining

admission, tuition rates, and charge differentials.

Under this policy “out-of-state” undergraduate students

are required to pay $1,260 more per year for tuition than

“resident” students, as well as $100 more per year for a

room. “Out-of-state” graduate students are charged $30

more per credit hour than “in-state” students.

The relevant sections of the “In-State-Policy” are as

follows:

“General Policy

“1. It is the policy of the University of Mary-

land 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:

to enjoy privileges, exemptions, and immunities as an

international organization under the International Organiza-

tions Immunities Act (59 Stat. 669)], and the members of their

immediate families.”

2 See Art. VII, §9(b) of the Articles of Agreement of the

International Bank for Reconstruction and Development

(12/27/45), 60 Stat. 1440, T.1L.A.S. No. 1502, as amended Dec.

16, 1965, 16 U.S.T. 1942, T.LA.S. No. 5929 and Art. XI § Xb)

of the Agreement Establishing the Inter-American Develop-

ment Bank, (4/8/59), 10 U.S.T. 3029, T.LA.S. No. 4397.

Plaintiff Clare Hogg’s father is employed by the former

organization usually referred to as the World Bank; the

fathers of the other two named plaintiffs are employed by the

latter organization.

10a

“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. }

“b. Where a student is financially independent

for at least the preceding twelve months, and

provided the student has maintained his domicile

in Maryland for at least six consecutive months

immediately prior to the last day available for

registration for the forthcoming semester. (Empha-

sis added).

x x ~ « « x

“2. It is the policy of the University of Mary-

land 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. Conversely, a student is

financially independent if he declares himself so, if

he receives less than half of his support from any

other person or persons and if he does not appear

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... .”

There are eight criteria which under the “In-State-

Policy” “the University shall take into consideration,

but shall not be limited to. . .” in determining whether

Maryland domicile has been established. These criteria,

applied to the individual upon whom the determination

of domicile depends, are whether the individual:

lla

a. Owns or rents and occupies real property in

Maryland as his (her) domicile on a year-round

basis.

b. Maintains a_ substantially uninterrupted

presence within Maryland for six consecutive

months, including those months when the Univer-

sity is not in regular session.

c. Maintains within the State of Maryland all

or substantially all personal possessions.

d. Pays Maryland income tax on all earned

income including taxable income earned outside

the State.

e. Registers all owned motor vehicles in Mary-

land.

f. Possesses a valid Maryland driver’s license, if

licensed.

g. Registers to vote in Maryland, if registered.

h. Gives a Maryland home address on federal

and state income tax forms.

(Attachment to Defendant’s Answer to Plaintiffs’

Request for Admissions of Fact, with emphasis

added.).

The University determined that the three named

plaintiffs were not entitled to “instate” status. The

determination was predicated upon a conclusion that

the parent on whom each was financially dependent

could not be domiciled in Maryland because each was

in the country on a G-4 visa. Without success, all three

plaintiffs availed themselves of the three-step appellate

process provided by the University to students dissatis-

fied with their residence classification.*®

3 The “In-State Policy” provides that:

“A student who disagrees with his classification may

request a personal interview with a classification officer or

his designee at which time the student will have an

opportunity to present any and all evidence he may have

bearing on his classification and to answer any questions

which have been raised about his status. A student may

further file a written appeal from the campus classification

officer or his designee to the Intercampus Review Committee

12a

The pertinent facts with respect to each of the

individual plaintiffs are alleged as follows:

“Plaintiff Moreno’s father, Mr. Manuel A.

Moreno, is a citizen of Paraguay and is the holder

ot a G-4 visa; he has been empivyed by ihe Inter-

American Development Bank for approximately

fourteen years. Manuel Moreno has owned a home

in Maryland for the past twelve years. Plaintiff

Moreno’s mother, Mrs. Gladys M. Moreno, is a

citizen of Paraguay and is the holder of a G-4 visa.

Manuel and Gladys Moreno own no property in

Paraguay, having sold the house which they

formerly owned there in 1960. Manuel and Gladys

Moreno have paid all Maryland State and Montgo-

mery County property taxes on their home as well

as all state and local retail, motor vehicle, fuel,

excise and other taxes applicable to them as

required by law. Manuel and Gladys Moreno each

hold a Maryland driver’s license; their automobiles

are registered in Maryland. Manuel and Gladys

Moreno have not resided anywhere other than in

Maryland for the past fourteen years; they have no

present intention to reside anywhere other than in

the State of Maryland.”

(Paper No. 1, Verified Complaint, € 16).

“Plaintiff Moreno has lived with his parents

since birth. He has lived in the United States since

the age of four, has attended primary and secon-

dary schools in the United States without interrup-

tion, and graduated from high school in Maryland.

Plaintiff Moreno is a citizen of Paraguay; he now

holds a G-4 visa. He holds a Maryland driver's

license. He has filed United States and Maryland

income tax returns for 1973 and 1974. Plaintiff

Moreno has not resided anywhere other than in

Maryland for the past fourteen years; he has no

present intention to reside anywhere other than in

the State of Maryland.”

(IRC). If the decision of the IRC is adverse to him, a student

may further file a written appeal to the Office of the

President of the University. The decision of the President of

the University or his designee shall be final.”

13a

(Id., 4 18).

“Plaintiff Otero’s father, Mr. Rene Otero, is a

citizen of Bolivia and is the holder of a G-4 visa; he

has been employed by the Inter-American Develop-

ment Bank for approximately fourteen years.

Plaintiff Otero’s mother, Mrs. Teresa Bailey Otero,

is a citizen of the United States; she is registered to

vote in Maryland. Rene and Teresa Otero resided

in the District of Columbia from the time of their

arrival in the United States in 1960 until 1965,

when they moved to Maryland. Rene and Teresa

Otero have owned a home in Maryland since 1965

and have resided therein for ten years; they have

paid all Maryland State and Montgomery County

property taxes thereon as well as all state and local

retail, motor vehicle, fuel, excise, and other taxes

applicable to them as required by law. Rene and

Teresa Otero each hold a Maryland driver’s license;

Rene Otero’s automobile is registered in Maryland.

Rene and Teresa Otero own no property in Bolivia.

Rene and Teresa Otero have not resided anywhere

other than in Maryland for the past ten years; they

have no present intention to reside anywhere other

than in the State of Maryland.”

(Id., § 21).

“Plaintiff Otero has lived with his parents since

birth. He has lived in the United States since the

age of five and has attended primary schools,

seconday schools, and college in the United States

without interruption. Plaintiff Otero is a citizen of

Bolivia; he now holds a G-4 visa; he has made

application to adjust his status to that of immi-

grant. Plaintiff Otero holds a Maryland driver’s

license. Plaintiff Otero has filed both United States

and Maryland income tax returns in 1972, 1973,

and 1974, and he has paid income tax to both

Maryland and the United States in each of those

three years. Plaintiff Otero has not resided any-

where other than in Maryland for the past ten

years; he has no present intention to reside

anywhere other than in the State of Maryland.”

l4a

Ud., € 23).

“Plaintiff [Clare B.] Hogg’s father, Mr. Vincent

Hogg, is a citizen of the United Kingdom and is the

holder of a G-4 visa; he has been employed by the

International Bank for Reconstruction and Devel-

opment for thirteen years. Plaintiff Hogg’s mother,

Mrs. Barbara Hogg, and the Hoggs’ daughter

Susan are citizens of the United Kingdom. Susan

Hogg married a United States citizen in 1973 and

adjusted her status to that of permanent resident

alien. Vincent and Barbara Hogg resided in the

District of Columbia from the time of their arrival

in the United States in 1962 until 1970, when they

moved to Maryland. They have resided in Mary-

land for five years except as described below.

Vincent and Barbara Hogg own their own home in

Maryland as well as a house in which they

formerly resided in the District; the house in the

District is rented. Vincent and Barbara Hogg own

no real property in the United Kingdom with the

exception of a small condominium apartment

which is currently listed for sale with a real estate

agent and which it is their present intention to sell

as soon as a sale can be consummated. Substan-

tially all of their personal property and invest-

ments are here in the United States with the

exception of a bank account in a sum equivalent to

approximately five hundred dollars maintained by

Vincent Hogg in the United Kingdom for the

convenience of paying life insurance premiums and

professional journal subscriptions; he does not

make payments to the United Kingdom’s State

Pension Fund. Vincent Hogg’s will was written in

the United States and represents that he resides in

Maryland. Vincent Hogg’s automobiles are regis-

tered in Maryland. Vincent and Barbara Hogg

each hold a Maryland driver’s license. They belong

to the local civic association in the area in which

they reside. Vincent and Babara Hogg have filed

joint United States income tax returns every year

since 1963. In 1974 they paid ir.come taxes to both

the United States and to the State of Maryland on

all income other than Mr. Hogg’s salary from the

15a

International Bank for Reconstruction and Devel-

opment, as well as all state and local retail, motor

vehicle, fuel, excise, and other taxes applicable to

them as required by law. Vincent and Barbara

Hogg have not resided anywhere other than in

Maryland for the past five years, with the excep-

tion of a period abroad of approximately nine

months as part of Vincent Hogg’s employment;

they have no intention to reside anywhere other

than in the State of Maryland.”

(Id., § 26).

“Plaintiff Hogg has resided with her parents

since birth. She has lived in the United States since

the age of seven and has attended primary schools,

secondary school, and college in the United States

without interruption, with the exception of the

approximately nine-month period described in

paragraph 26 above. Plaintiff Hogg is a citizen of

the United Kingdom; she now holds a G-4 visa; she

holds a Maryland driver’s license. Plaintiff Hogg

has filed both United States and Maryland income

tax returns in 1973 and 1974. Plaintiff Hogg has

not resided anywhere other than in Maryland for

the past five years, with the exception of the

approximately nine-month period described in [the

above paragraph]; she has no present intention to

reside anywhere other than in the State of Mary-

land.”

(Id., § 28).

Plaintiffs claim the actions of defendants in denying

them “in-state” status are in violation of the Due

Process, Equal Protection and Supremacy Clauses of

the Constitution. They seek to enjoin the defendants

from failing to reclassify them as students having “in-

state” status and to enjoin the defendants from denying

to any student “in-state” status either partially or

wholly on the basis that such student or any parent or

person on whom such student is financially dependent

either holds a G-4 visa or pays no Maryland State

income tax pursuant to an international agreement to

l6a

which the United States is a party on wages paid by an

international organization.

Defendants have moved for summary judgment on

various jurisdictional and procedural grounds, as well

as on the merits of the case.

I. Jurisdiction

Defendants’ initial argument is that this court lacks

subject matter jurisdiction under 28 U.S.C. § 1343(3) or

(4)* because plaintiffs’ claim is founded upon the

Maryland law of domicile and presents no federal

question:

“Plaintiffs’ cause of action and the core of their

grievance does not present a deprivation by the

Defendants of a federal statutory or constitutional

right, privilege or immunity, but rather, rests upon

an interpretation of the Maryland definition of

domicile.” (Memorandum in Support of Defend-

ants’ Motion For Summary Judgment, at p. 10).

[1] Plaintiffs filed this suit pursuant to, inter alia, 42

U.S.C. §1983 which authorizes a “suit in equity”

against a “person” to redress “the deprivation” under

color of any State regulation “of any rights, privileges,

or immunities secured by the Constitution” to any

“person within the jurisdiction” of the United States.

This section creates a federal cause of action but it does

not by itself confer jurisdiction on federal district courts

to adjudicate claims brought pursuant to it. The

jurisdictional counterpart of 42 U.S.C. §1983 is 28

‘ Title 28, U.S.C., § 1343 provides that the district courts

have jurisdiction of any civil action authorized by law to be

commenced by any person:

“(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured by the

Constitution of the United States or by any Act of

Congress providing for equal rights of citizens or of all

persons within the jurisdiction of the United States;

‘(4) To recover damages or ‘o secure equitable or

other relief under any Act of Congress providing for the

protection of civil rights, including the right to vote.”

17a

U.S.C. § 1343. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct.

1372, 39 L. Ed. 2d 577 (1974). Jurisdiction under

§ 1343(3) exists at least for deprivations by state

officials of rights “secured by the Constitution of the

United States.”® Jurisdiction exists in this court under

§ 1343 (3) if a constitutional claim of sufficient sub-

stance has been raised by the § 1983 cause of action.

Hagans v. Lavine, supra.

[2] Plaintiffs’ § 1983 claim is premised on the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment. Contrary to defendants’ assertions, it is

not the Maryland law of domicile which gives rise to

this suit, but rather the “In-State Policy” of the

University of Maryland which has been interpreted by

the defendants as automatically classifying holders of

G-4 visas as non-residents for purposes of tuition, on the

assumption that no one in the United States on a G-4

visa can ever have the requisite intent to establish a

Maryland domicile. The due process claim, premised on

an argument that the University of Maryland’s policy

establishes an irrebutable presumption with respect to

residence and domicile for tuition purposes similar to

that struck down in Vlandis v. Kline, 412 U.S. 441, 93 S.

Ct. 2230, 37 L. Ed. 2d 63 (1973), and the equal protection

claim, based on an alleged violation of both the strict

scrutiny and the reasonable basis-rational relationship

tests, are at the heart of this case. These are matters of

federal law. Moreover, these claims are not so insub-

stantial as to warrant dismissal for lack of subject

matter jurisdiction. Such dismissal could be granted

only as to claims “absolutely devoid of merit,” Newbu-

ryport Water Co. v. Newburyport, 193 U.S. 561, 579, 24

S. Ct. 553, 48 L. Ed. 795 (1904); “wholly insubstantial,”

5 Whether the jurisdictional scope of § 1343(3) is fully

coextensive with the substantive provisions of § 1983, so that

§ 1343(3) would provide jurisdiction for any suit premised on

the deprivation under color of state law of a right secured by

any Act of Congress is a question not yet decided by the

Supreme Court, Hagans v. Lavine, supra, at 534 note 5, 94 S.

Ct. 1372, but the Fourth Circuit has so held. Blue v. Craig,

505 F.2d 830 (4th Cir. 1974).

18a

Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 7 L.

Ed. 2d 512 (1962); “obviously frivolous,” Hannis Distil-

ling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 54

L. Ed. 482 (1910); or “no longer open to discussion,”

McGilvra v. Ross, 215 U.S. 70, 80, 30 S. Ct. 27, 54 L. Ed.

95 (1909). See also Hagans v. Lavine, supra, Baker v.

Carr, 369 U.S. 186, 198-204, 82 S. Ct. 691, 7 L. Ed. 2d 663

(1962).

The claims in this case are clearly not insubstantial.

See Vlandis v. Kline, supra; Hooban v. Boling, 503 F.2d

648 (6th Cir. 1974); Klem v. Carlson, 473 F.2d 1267 (6th

Cir. 1973); Jagnandan v. Giles, 379 F. Supp. 1178 (N.D.

Miss. 1974); Sturgis v. State of Washington, 368 F.

Supp. 38 (W.D. Wash.), aff'd mem. 414 U.S. 1057, 94 S.

Ct. 563, 38 L. Ed. 2d 464 (1973); Starns v. Malkerson,

326 F. Supp. 234:(D. Minn. 1970), aff'd mem. 401 US.

985, 91 S. Ct. 1231, 28 L. Ed. 2d 527 (1971).

Il. Are the Defendants “Persons” within

42 U.S.C. § 1983?

[3] Defendants argue that this suit cannot be

maintained against either the University of Maryland

or Dr. Elkins, its President, since neither are “persons”

within the meaning of 42 U.S.C. § 1983.

In Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed.

2d 492 (1961), the Supreme Court held that municipali-

ties were not “persons” within the meaning of 42 U.S.C.

§ 1983, at least in damage suits. Kenosha v. Bruno, 412

U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973), makes

clear that that ruling also applies where the only relief

sought is injunctive or declaratory. Moor v. County of

Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596

(1973), established that counties were not §1983

persons. In Huntley v. North Carolina State Board of

Education, 493 F.2d 1016, 1017 n.2 (4th Cir. 1974), the

Fourth Circuit decided that municipal agencies are not

“persons” for § 1983 purposes. A state is also not a

proper defendant in a § 1983 action. Meyer v. State of

New Jersey, 460 F.2d 1252 (3rd Cir. 1972; Whitner v.

Davis, 410 F.2d 24 (9th Cir. 1969); Hinish v. State of

19a

Maryland, 393 F. Supp 53 (D. Md. 1975). This doctrine

applies equally to state agencies. Bennett v. People of

State of California, 406 F.2d 36 (9th Cir.), cert. den., 394

U.S. 966, 89 S. Ct. 1320, 22 L. Ed. 2d 568; Cheramie v.

Tucker, 493 F.2d 586 (5th Cir.), cert. den., 419 U.S. 868,

95 S. Ct. 126, 42 L. Ed. 2d 107 (1974); Edwards v.

Philadephia Electric Co., 371 F. Supp. 1313 (D.C. Pa.

1974), aff'd 510 F.2d 969 (3rd Cir. 1975).

If the University of Maryland is a state agency, it is

not a “person” within § 1983 and no cause of action can

be brought against it under that section. Courts

considering whether a particular college or university is

or is not a state agency have considered the laws of the

state as they define the relationship between the state

and the school; whether the school is performing a

governmental or proprietary function; whether it has

been separately incorporated; the degree of the school’s

autonomy over its operations; the ownership of the

school’s property; whether its property is immune from

state taxation; whether the sovereign has immunized

itself from responsibility for the school’s operations;

whether a judgment for damages against the school

would be payable out of the state treasury; and the

source of the school’s financing. It has also been stated

that generally the same inquiry is made and criteria

considered in determining whether a state university is

a §1983 “person” as is made in deciding whether a

damage suit against the state university would be

barred by the Eleventh Amendment. See Gordenstein v.

University of Delaware, 381 F. Supp. 718 (D. Del. 1974);

Samuel v. University of Pittsburgh, 375 F. Supp. 1119

(W.D. Pa. 1974), app. dismissed 506 F.2d 355 (3d Cir.

1974); Langsner v. Morgan State College, Civil No. HM-

74-1359 (D. Md. Jan. 9, 1976).

In Langsner Judge Herbert F. Murray held that

Morgan State University was a state agency and not a

“person” within the meaning of § 1983. In the present

case an uncontradicted affidavi‘’ of Dr. Wilson H.

® Under Rule 56, F.R.Civ.P., the uncontradicted facts in

this affidavit may be taken as true.

20a

Elkins, President of the University of Maryland, has

been filed which establishes that virtually all of the

factors considered determinative in Langsner apply

also to the University of Maryland. These factors set

forth in the margin’ fall within the scope of the factors

discussed in Gordenstein, supra, and Samuel, supra, as

well. We are persuaded that the University of Mary-

7 Dr. Wilson’s affidavit states:

“(q) All real property of the University belongs to the

State of Maryland, and substantially all such property is

titled in the name of the State of Maryland to the Use

and Benefit of the University of Maryland or to the Use

and Benefit of the Board of Regents of the University of

Maryland;

‘“(b) The sale and/or lease of real property of the

University is reviewed by the Department of General

Services, State of Maryland, and approved by the Board

of Public Works (including the Governor of the State of

Maryland), State of Maryland. The acquisition and/or

lease of real property by the University of Maryland is

similarly reviewed and approved;

“(c) All, or substantially all, of the contracts and

leases to which the University of Maryland is a party

are first reviewed by the Office of the Attorney General,

State of Maryland;

“(d) Payroll checks of employees of the University

are drawn on the treasury of the State of Maryland and

bear the facsimile signatures of the Treasurer and

Comptroller of the State of Maryland;

‘“(e) The annual Budget of the University is presented

to and must be approved by the General Assembly of the

State of Maryland, and is subject to review and

amendment by the State Department of Budget and

Fiscal Planning;

“(f) All University funds are funds of the State of

Maryland. All funds available to the University are

obtained substantially through appropriations of the

Maryland General Assembly, including student fees, and

government and private grants, which are specifically

appropriated by the General Assembly for use by the

University. All, or substantially all, bills paid by the

University are paid through checks drawn on the

Treasury of the State of Maryland;

“(g) The purchase of goods and equipment by the

University is exempt from Maryland Sales Tax. The

2la

land, like Morgan State College, is not a §1983

“person” and cannot be sued under that section.

With respect to the other defendant, Dr. Elkins,

however, it is equally clear that when he is sued in his

official capacity under 42 U.S.C. § 1983 in a suit seeking

injunctive and declaratory relief only, he is a “person”

University is entitled to avail itself of the purchasing

facilities of the Maryland Department of Budget and

Procurement;

“(h) The University’s financial records are audited by

the Maryland General Assembly, Division of Legislative

Auditors. The University must also provide to the Board

of Public Works or any member of the General Assembly

any requested information about any phase of its

operation, and must make an annual report thereon to

the latter;

(i) Decisions by the University with respect to

employment grievances, inciuding terminations, of

classified employees, are appealable for determination

by the Secretary of Personnel, State of Maryland;

_“G) Such comprehensive liability insurance as the

University is permitted to carry is authorized and

limited under Article 77A, §15A of the Annotated Code

of Maryland. Insurance to University property is

provided through participation in State of Maryland

ef Plans; f Reg

“(k) e Board o ents of the University consists

of fifteen members. The Governor of ao fate of

Maryland appoints fourteen with the advice and consent

of the State Senate. The remaining members are the

Maryland Secretary of Agriculture:

“(1) The Governor, the State Treasurer, and the State

Comptroller are notified of all meetings of the Board of

Regents of the University and have the authority to sit

with the Board. The State budget director, and the

chairmen of the State Senate Finance committee and the

State House Ways and Means committee are invited to

sit with the Board when requests for appropriations are

“(m) The University obtains its legal re tation

from the Attorney General of the State of Maryland”

In addition to the above, as noted by Judge Murray in

Langsner, Art. 78A § 16C of the Annotated Code of Maryland

would appear to indicate that any money judgment, against

the University of Maryland “will be paid, if at all, by the

State of Maryland.” Langsner, p. 9.

22a

for purposes of that section and amenable to suit

thereunder. Burt v. Bourd of Trustees of Edgefield Co.

School Dist., 521 F.2d 1201 (4th Cir. 1975); Harper v.

Kloster, 486 F.2d 1134 (4th Cir. 1973); Gay Students

Organization of the Univ. of New Hampshire uv.

Bonner, 509 F.2d 652 (1st Cir. 1974); Rochester v. White,

503 F.2d 263 (3d Cir. 1974); Langsner v. Morgan State

College, supra.

III. Case or Controversy

[4] Defendants argue that this court lacks jurisdic-

tion because no Art. III § 2° case or controversy exists

between the plaintiffs and the defendants because the

plaintiffs, dependent as they are on their parents,

presumably do not pay their own tuition and thus stand

to lose or gain nothing by the outcome of this lawsuit.

Aside from the lack of evidence in the record to support

the underlying assumption on the part of the defend-

ants it is clear that the plaintiffs in this case are

presenting a constitutional question “in the context of a

specific live grievance.” Golden v. Zwickler, 394 US.

103, 110, 89 S. Ct. 956, 960, 22 L. Ed. 2d 113 (1969). It is

the plaintiffs themselves who attend the University of

Maryland and who are allegedly being unconstitution-

ally overcharged by that institution.

The plaintiffs in this case have a personal stake in

the outcome and have an interest adverse to the

defendants since the tuition rates charged them as non-

residents must be paid in order for them to attend the

University of Maryland. Plaintiffs’ complaint alleges

that they themselves are being subjected to higher

tuition and other costs. Moreover, under Maryland law,

Annotated Code of Maryland, Art. 1 § 24, plaintiffs who

are all over 18, are adults. The law places no responsi-

bility on their parents to pay their tuition. If these rates

cannot be paid, either by the plaintiffs themselves, by

their parents, or by both parents and students, the

* Art. III § 2 of the Constitution of the United States limits

the judicial power of federal courts to “Cases” or “Controver-

§1es8.

Mi Cleat eS I AR ts a Oe a tm gn me

23a

resulting loss of educational opportunity falls squarely

on the plaintiffs. They have a sufficient interest to

make the lawsuit an Article III case or controversy

under the tests laid down by the Supreme Court. O’Shea

uv. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674

(1974); Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L.

Ed. 2d 36 (1973); see also Warth v. Seldin, 422 U.S. 490,

95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Super Tire

Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct.

1694, 40 L. Ed. 2d 1 (1974).

IV. Standing

[5] Defendants also allege that plaintiffs lack

standing to sue because they are financially dependent

on their parents who, therefore, presumably pay all of

plaintiffs’ tuition costs. While the Supreme Court has

noted that the concept of justiciability, which expresses

the “case or controversy” requirement of Article III, is

not synonymous with that of standing, Schlesinger v.

Reservists, etc., To Stop The War, 418 U.S. 208, 215, 94

S. Ct. 2925, 41 L. Ed. 2d 706 (1974), they do overlap. See

Warth v. Seldin, supra, 422 U.S. at 498-499, 95 S. Ct. at

2204, where it is stated:

“In its constitutional dimension, standing im-

ports justiciability: whether the plaintiff has made

out a ‘case or controversy’ between himself and the

defendant within the meaning of Art. III. This is

the threshold question in every federal case,

determining the power of the court to entertain the

suit. As an aspect of justiciability, the standing

question is whether the plaintiff has ‘alleged such

a personal stake in the outcome of the controversy’

as to warrant his invocation of federal-court

jurisdiction and to justify exercise of the court’s

remedial powers on his behalf. Baker v. Carr, 369

U.S. 186, 204 [82 S. Ct. 691, 7 L. Ed. 2d 663] (1962).

The Art. III judicial power exists only to redress or

otherwise to protect against injury to the complain-

ing party, even though the court’s judgment may

benefit others collaterally. A federal court’s juris-

diction therefore can be invoked only when the

plaintiff himself has suffered ‘some threatened or

24a

actual injury resulting from the putatively illegal

action... .’ Linda R. S. v. Richard D., 410 U.S. 614,

617 [93 S. Ct. 1146, 35 L. Ed. 2d 536] (1973). See

Association of Data Processing Service, Inc. v.

Camp, 397 U.S. 150, 151-154 [90 S. Ct. 827, 25 L. Ed.

2d 184] (1970).” (Footnotes omitted).

The plaintiffs in this case, as discussed above, are

asserting their own legal rights and interests and have

a sufficient stake in the outcome of this lawsuit to

establish standing to bring it. United States v. SCRAP,

412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973);

Association of Data Processing Organizations Inc. v.

Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184

(1970).

V. The Eleventh Amendment

Defendants argue that the Eleventh Amendment to

the Constitution bars this suit.°

{6, 7] Since the defendant University of Maryland

cannot be sued under 42 U.S.C. § 1983, the Eleventh

Amendment defense need be considered only with

respect to Dr. Elkins. The short answer to this

contention is that the Eleventh Amendment does not

bar suits seeking only prospective injunctive relief

against state officials who, acting in their official

capacity under color of state law or regulation, deprive

plaintiffs of constitutional rights. Edelman v. Jordan,

415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ex

Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714

(1908). Any ancillary effect which a_ prospective

injunction against Dr. Elkins, if issued in this case,

would have on the treasury of the State of Maryland is

a “permissible and often an inevitable consequence of

the principle announced in Ex Parte Young, supra.”

Edelman v. Jordan, supra, 415 U.S. at 668, 94S. Ct. at

1358.

* The Eleventh Amendment provides:

“The Judicial power of the United States shall be

construed to extend to any suit in law or in equity,

commenced or prosecuted against one of the United

States by citizens of another State, or by Citizens or

Subjects of any Foreign State.”

25a

VI. Absention

[8] Defendants urge the court to abstain from

deciding this case in order that the Maryland courts

can decide if a G-4 alien can be domiciled in Maryland.

Abstention is a judicially created doctrine. It has

several branches to its family tree. Two of these

branches are urged as applicable here to warrant this

federal court to stay its hand.

The first is the abstention rationale enunciated in

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87

L. Ed. 1424 (1943), holding that a federal court should

abstain in order to avoid unnecessary conflict with the

regulation by a state of a complicated area of local

interest.

The Burford case arose out of disputes concerning the

application of a regulation of the Texas Railroad

Commission establishing minimum spacing between oil

wells. In Burford the Court stressed that abstention was

appropriate because the Texas scheme of regulating oil

and gas drilling was an extremely thorny problem

involving certain “non-legal complexities.” (Jd. at 323,

63 S. Ct. 1098). The Texas legislature had established a

Commission to resolve these technically complicated

geologic factual disputes, “as a part of the entire

conservation program with implications to the whole

economy of the state.” (Jd. at 325, 63 S. Ct. at 1103).

Moreover the Texas legislature had also established a

system of thorough judicial review by its own state

courts which could provide as full relief as could the

federal courts. By concentrating all direct review of the

Commission’s orders in the state district court of one

county, the Texas legislature also sought to avoid the

confusion of multiple review of the same general issues.

Prior interference by federal courts in this regulatory

scheme, the Burford Court noted, had previously caused

such confusion and had created numerous problems for

the Texas Governor, the Texas legislature and the

Railroad Commission.

26a

The considerations which persuaded the Burford

Court to order federal abstention are absent from this

case. The process by which the University of Maryland

determines a student’s domicile does not involve a

complicated area which the Maryland legislature has

singled out for special treatment. The legislature has

not seen the need to create a state agency staffed with

experts in order to effect a consistent and harmonizing

treatment of a particularly thorny matter of local

interest. There is no special system of judicial review.

There is no history of prior interference by the federal

courts in the University of Maryland’s procedures,

causing confusion and inconsistency. It is not predicta-

ble that the normal functioning of the system by which

the state determines a student’s domicile would give

rise to a surfeit of lawsuits seeking to interpose federal

courts in matters of purely state interest. Even this suit,

although the named plaintiffs do seek this court to

declare them Maryland domiciliaries, has as its

primary thrust to force the classification process to

operate meaningfully with respect to G-4 alien students.

The plaintiffs here are not seeking to “short circuit” the

University of Maryland’s classification scheme, but

rather have submitted themselves to it. A decision by

this court on the merits of plaintiff's complaints will not

conflict with a state regulatory scheme in the manner

feared by the Court in Burford. Since none of the factors

determinative in Burford exists here, abstention on the

rationale of that case is not warranted.

The second branch of the abstention family tree

invoked by the defendants is the so-called Pullman

doctrine. The decision in Railroad Commission of Texas

v. Pullman Co.. 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971

(1941), and its progeny have established that abstention

is proper where an interpretation or construction of an

unclear state statutory or constitutional provision

might end the litigation, thereby eliminating the need

for a federal court to resolve federal constitutional

issues. Kusper v. Pontikes, 414 U.S. 51, 94 S. Ct. 303, 38

L. Ed. 2d 260 (1973); Lake Carriers’ Association v.

ee eae en ne ene

sett tes OS

Nr te te: Ol At AD BI tal ON 2k A le a RN en Sh Rl OA

27a

MacMulian, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d

257 (1974). The primary reasons for invoking abstention

in the Pullman context are to avoid unnecessary

friction in federal-state relations and to avoid prema-

ture federal constitutional adjudication. Harman uv.

Forssenius, 380 U.S. 528, 85 S. Ct. 1177, 14 L. Ed. 2d 50

(1965).

The language of the “In-State Policy” of the Univer-

sity of Maryland which is under attack here is not

subject to an interpretation in a Maryland court which

would avoid plaintiffs’ federal constitutional challenge.

That regulation on its face establishes that only “U.S.

citizens’ and “immigrant aliens” can establish in-state

status, and then only under certain conditions which

are discussed infra. By virtue of the words of the “In-

State Policy,” the University of Maryland, as a result of

the fact that the plaintiffs’ fathers, whose domiciles are

determinative of their respective Cependent’s residency

status, are all non-immigrant G-4 aliens, will automati-

cally attribute to them out-of-state status for admission,

tuition and charge differential purposes. No interpreta-

tion of the wording of the “In-State Policy” has been

offered which changes that stated result. Since the

regulation is clear and is not subject to any interpreta-

tion which could avoid a federal constitutional issue,

the reasons for invoking the Pullman abstention

doctrine are absent. Wisconsin v. Constantineau, 400

U.S. 433, 437-439, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971);

Zwickler v. Koota, 389 U.S. 241, 250, 251, 88 S. Ct. 391,

19 L. Ed. 2d 444 (1967).

Nevertheless, defendants argue that abstention is

appropriate because the Maryland courts have never

decided whether or not a G-4 alien could establish a

Maryland domicile. This novel abstention argument

would require federal courts to abstain whenever an

unresolved question of state common law is involved in

federal constitutional litigation. Defendants have

presented no authority, and the court has found none,

which supports the application of the abstention

28a

doctrine in these circumstances. The Maryland common

law of domicile is clear and provides sufficient back-

ground to resolve the domicile question raised by the

plaintiffs in the context of their federal constitutional

challenge to the University of Maryland’s policies. See

Mariniello v. Shell Oil Company, 511 F.2d 853, 860-861

(3rd Cir. 1973).

Federal district courts are presumed to be knowledge-

able in the law of the states in which they sit, see

Runyon v. McCray, —~— U.S. ; : , 96 S. Ct.

2586, 49 L. Ed. 2d 415 (1976), and are often called upon

to resolve state law domicile questions in diversity of

citizenship cases.‘ While this is not a diversity case

and there is a constitutional question to be resolved, on

balance, it would be unwise to extend the abstention

doctrine to a case such as this. No principles of

federalism would be advanced since no unclear state

statute or constitutional provision subject to state court

construction or interpretation is involved. The delay

and expense attendant if the court abstained would be

great. Abstention has been confined to certain narrowly

limited special circumstances, Kusper v. Pontikes,

supra; Lake Carrier’s Association v. MacMullan, supra;

Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed.

2d 36 (1972), which do not exist here. Therefore, the

court declines to abstain in this case. See also

Examining Board of Engineers, Architects and Survey-

ors v. DeOtero, 426 U.S. 572, 96 S. Ct. 2264, 49 L. Ed. 2d

65 (1976).

VIL The Merits

A. Due Process

Plaintiffs raise a due process claim, relying princi-

pally on Viandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230,

0 Abstention has never been deemed appropriate in

diversity cases merely where there are unsettled questions of

state law involved. McNeese v. Board of Education, 373 US.

668, 673, n. 5, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); Meredith

vu. Winter Haven, 320 U.S. 228, 64 S. Ct. 7, 88 L. Ed. 9 (1943);

Martin v. State Farm Insurance Co., 375 F.2d 720, 722 (4th

Cir. 1967).

eed Fone eh hte

29a

37 L. Ed. 2d 63 (1973); Stanley v. Illinois, 405 U.S. 645,

92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), and Cleveland

Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct.

791, 39 L. Ed. 2d 52 (1974). While plaintiffs do not

challenge the University of Maryland’s policy of

charging non-domiciliaries higher tuition rates, they do

allege that the University of Maryland’s “In-State

Policy” creates an irrebuttable presumtpion, that non-

immigrant aliens holding G-4 visas cannot establish a

Maryland domicile, a fact that is not, they argue,

universally true.

In Vlandis, the Supreme Court declared unconstitu-

tional a Connecticut statute which classified certain

married and unmarried students accepted for admission

to the University of Connecticut as out-of-state students

for tuition purposes based on the applicant’s legal

address prior to or at the time of his application. Under

the statute, if a student were classified “out-of-state”

under this system at the time of application for

admission, the student could not change l.is status no

matter what the student’s actual domiciliary intent was

at a later date. The student’s status established at the

time of his application for admission was deemed to

continue during his period of attendance at the univer-

sity.

In reaching its decision the Court noted:

“It may be that most applicants to Connecticut’s

university system who apply from outside the State

or within a year of living out of State have no real

intention of becoming Connecticut residents and

will never do so. But it is clear that not all of the

applicants from out of State inevitably fall in this

category.” (412 U.S. at 448, 93 S. Ct. at 2234).

Under these circumstances, the Court rejected the

state’s attempts at justification and held that:

“. . . since Connecticut purports to be concerned

with residency in allocating the rates for tuition

and fees in its university system, it is forbidden by

the Due Process Clause to deny an individual the

30a

resident rates on the basis of a permanent and

irrebuttable presumption of non-residence, when

that presumption is not necessarily true in fact,

and when the State has reasonable alternative

means of making the crucial determination.

Rather, standards of due process require that the

State allow such an individual the opportunity to

present evidence showing that he is a bona-fide

resident entitled to in-state rates.”’ (412 U.S. at 452,

93 S. Ct. at 2236).

In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31

L. Ed. 2d 551 (1972), the Court held unconstitutional on

due process grounds Illinois’ statutory irrebuttable

presumption that all unmarried fathers are unqualified

to raise their children. The Court said that a state could

not conclusively presume that every unmarried father

was unfit to raise his children, but must under the due

process clause provide an opportunity for a hearing on

the issue of a particular unmarried father’s fitness

where his fitness was challenged.

Similarly, in Cleveland Board of Education uv.

LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52

(1974), the Court invalidated mandatory leave and

return rules for pregnant teachers in Ohio and Virginia

on due process grounds, because the rules established

conclusive presumptions of facts which were not

universally true, namely that all women, who were 4 or

5 months pregnant or who gave birth 3 months or less

before they sought to return to work, were physically

incapeable of performing their duties. The Court held

that such determinations had to be made on an

individual basis. The maternity leave rules were found

to have no rational relationship to the interests of those

states in preserving continuity of instruction and in

protecting the health of the mother or expectant

mother.

In this case, then, several questions relative to

plaintiffs’ due process claim must be resolved: (1) does

the University of Maryland’s “In-State Policy” create

an irrebuttable presumption concerning the domicile of

em ot

etnind

3la

G-4 alien? (2) if so, is that presumption appropriate

because universally true? (3) if not, can the defendants

so justify that presumption as to save it from unconsti-

tutionality?

The defendants argue that the “In-State Policy” does

not rest upon or create an irrebuttable presumption as

to the domicile of a G-4 alien, but merely establishes the

status of an individual as a G-4 alien as one of the

factors to be considered in determining domicile for

tuition purposes, albeit the “paramount” factor. Defend-

ants also argue that there is no irrebuttable presump-

tion, because plaintiffs may, as may any other student,

obtain review of their domiciliary classification at any

time. However, these arguments fall short of the mark.

As admitted at oral argument, and as evidenced by the

express language of the “In-State Policy,” the Univer-

sity of Maryland determines on a case-by-case basis for

tuition and fees purposes the domicile of only “United

States citizens and ... immigrant aliens lawfully

admitted for permanent residence in accordance with

the laws of the United States.” Under the University’s

policies, a financially independent student in the

United States on the basis of a G-4 visa, or a student

who is financialiy dependent on a parent who holds a

G-4 visa, as are the named plaintiffs in this case, is

automatically “attributed out-of-state status for admis-

sion, tuition, and charge differential purposes. .. .”!!

So long as the G-4 visa status of the student or his

parent continues, any other evidence of domicile

brought before the University could not possibly

produce a reclassification of the student in question.

The single controlling factor in the case of a G-4 alien is

that visa classification. All other facts relating to

domicile are irrelevant. The fact that the State will

listen to evidence totally immaterial to its predeter-

mined conclusion concerning the domicile of a G-4 alien

'! The University bases the tuition rates of a financially

dependent student on the domicile of his parents. A parent

with a G-4 visa could not, under the In-State Policy, establish

a Maryland domicile.

32a

does not make that conclusion any less irrebuttable. See

United States Department of Agriculture v. Murry, 413

U.S. 508, 512, 93 S. Ct. 2382, 37 L. Ed. 2d 767 (1973),

Stanley v. Illinois, supra.

However, even if a certain presumption of fact is

irrebuttable, the resulting classification system is not a

fortiori unconstitutional. If the presumed fact is

necessarily true, it would be different from the presump-

tions about students in Viandis, mothers in LaFleur,

fathers in Stanley, household members in Murry, and

drivers in Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29

L. Ed. 2d 90 (1971), among others, which the Court has

previously invalidated.

The defendants have argued that domicile is the basis

on which tuition rates are determined and that all non-

resident aliens, including those in the United States on

G-4 visas, are precluded by the terms and conditions of

their visas from being domiciled in Maryland. If, as the

defendants argue, under the law of domicile of Mary-

land, a G-4 alien cannot establish domicile, then a

classification based on domicile which presumes non-

domicile for such aliens is not contrary to fact and is

universally true. Inquiry therefore must be made into

the common law of Maryland relating to domicile and

into federal law defining the nature of a G-4 alien’s stay

in the United States.

B. Maryland Law of Domicile

In Shenton v. Abbott, 178 Md. 526, 15 A.2d 906 (1940),

the Court of Appeals of Maryland held that:

“A person’s domicile is the place with which he has

a settled connection for legal purposes, either

because his home is there or because that place is

assigned to him by the law. It is well defined as

that place where a man has his true, fixed,

permanent home, habitation and principal estab-

lishment, without any inteniion of removing

therefrom, and to which place he has, whenever he

is absent, the intention of returning.” (/d., at 530,

15 A.2d at 908).

ee ee ee —

33a

Shenton v. Abbott also establishes that a person retains

his original domicile if he does not acquire a new one.

Two elements must be shown to prove a change of

domicile: (1) actual removal to or physical presence in

another habitation and (2) an intent to remain there

permanently or at least for an unlimited time. Jd. at

530, 15 A.2d 906. If a person has established a new

domicile, a “floating intent to return to his former

domicile at some future time” does not negative the

intent to establish the new domicile. Jd. at 533, 15 A.2d

at 909.

It is indisputable in this case that plaintiffs’ fathers,

because they are G-4 aliens, did not have Maryland as

their respective original domiciles but each could only

have acquired a Maryland domicile if he had changed

his original domicile. The court in Shenton also stated:

“No temporary residence, whether for the purposes

of business, health, or pleasure, occasions a change

of domicil. Even though a person may be absent

from his domicil for many years, and may return

only at long intervals, nevertheless he retains his

domicil if he does not acquire a domicil elsewhere.”’

(/d., at 530, 15 A.2d at 908).

As a general proposition of law, Shenton noted that

“{TJhe determination of the place of domicil depends

upon the circumstances of each case.” (/d., at 533, 15

A.2d at 909). All of these principles are still controlling

Maryland law. Bainum v. Kalen, 272 Md. 490, 325 A.2d

392 (1974); Knapp v. Comptroller, 269 Md. 697, 309 A.2d

635 (1973); Liberty Mutual Insurance Co. v. Craddock,

26 Md. App. 296, 338 A.2d 363 (1975).

In addition to physical presence and intent to remain

permanently or indefinitely, the Maryland courts

implicitly recognize, as another factor necessary to the

establishment of a new domicile, that the person

seeking to change his domicile must have the legal

capacity to do so. Liberty Mutual Insurance Co. v.

Craddock, supra, at 303, 338 A.2d 363. See Restatement

(Second) of Conflicts, § 15 (1971). Thus, in the case of a

34a

minor child, ordinarily legally incapable of a domicile

separate from that of its parent, the domicile of a minor

child in Maryland is with its parents. If the child’s

parents are divorced, the child’s domicile is that of the

parent to whom legal custody has been awarded. Taylor

v. Taylor, 246 Md. 616, 619, 229 A.2d 131 (1966); Berlin

v. Berlin, 239 Md. 52, 55, 210 A.2d 380 (1964); Rethorst

v. Rethorst, 214 Md. 1, 1383 A.2d 101 (1957). However, a

minor child retains the domicile of its father if the child

lives with neither parent. Rethorst v. Rethorst, supra, at

12. 133 A.2d 101. If there has been no legal fixing of

custody, then the minor child’s domicile is that of the

parent with whom it lives. Jd.; Ross v. Pick, 199 Md.

341, 349, 86 A.2d 463 (1952). A minor child who falls

within these common law principles can never establish

an independent domicile, whatever may be that child’s

intent to do so. Because a minor child is not sui juris

and can therefore not have legal effect given to its

actual intent, physical presence in a certain state, and

an intent to remain there indefinitely, do not fix or

change the domicile of a minor. During minority, the

common law fixes the child’s domicile. Sudler v. Sudler,

121 Md. 46, 88 A. 26 (1913).

There is nothing in Maryland law, possibly aside

from the principle that a person intending a change in

domicile must be legally capable of doing so, to prevent

a G-4 visa holder from obtaining a Maryland domicile.

Therefore, federal law must be examined to determine

whether such law relating to G-4 aliens in any respect

renders such aliens legally incapable of changing the

domicil.

C. Federal Law

The Immigration and Nationality Act of 1952, 8

U.S.C. § 1101 et seg., defines 12 classes of nonimmi-

grant aliens which, including subclasses, describe 17

types of nonimmigrants. Class G aliens are aliens who

are in the United States as resident representatives of

foreign governments and members of their immediate

families and staffs, as well as aliens who are foreign

35a

representatives to or employees of international organi-

zations covered by the International Organizations

Immunities Act, 22 U.S.C. § 288, and members of their

immediate families and personal staffs. Specifically, G-

4 aliens are:

“(iv) officers, or employees of such international

aa a and the members of their immediate

amilies.

In contrast to those classes of aliens who are defined

as aliens “having a residence in a foreign country

which [they have] no intention of abandoning,” 8

U.S.C. §1101(a\15\B), (F), (H), (J), or as aliens who

intend to enter the United States “temporarily” or who

are “in transit” § 1101(a\(15\C), (D), (L), a G-4 alien is

simply defined as an employee of an international

organization. The statute, therefore, does not define a

G-4 alien in terms of an express intent on the part of

such alien relative to his domicile.

The visa itself held by a G4 alien is not determina-

tive of the domicile issue. A visa is essentially a

document of entry. Alves v. Alves, 262 A.2d 111, 115

(D.C. App. 1970); see 22 C.F.R. § 41.120. Its period of

validity has no relation to the period of time an alien

may be authorized by the immigration authorities to

stay in the United States, 22 C.F.R. §41.122(a). The stay

of a G4 alien is governed by regulations of the

Immigration and Naturalization Service. 8 U.S.C.

§ 1184(a). As provided in 8 C.F.R. § 214.1(a):

“(a) General. Every nonimmigrant alien appli-

cant for admission or extension of stay in the

United States shall. . . agree that he will abide by

all terms and conditions of his admission or

extension, and that he will depart at the expiration

of the period of his admission or extension or an

Comneane of his authorized nonimmigrant

status.”

The period of admission of a G-4 alien is for so long as

the alien continues to be recognized by the Secretary of

State «s a member of that class of aliens. In terms of

the present case, the period of admission of the

36a

plaintiffs’ fathers is for so long as they are respectively

employed by international organizations governed by

the International Organizations Immunities Act, cited

supra. 8 C.F.R. §§ 214.1(a), 214.2(g).'”

[9] The mere fact that a G-4 alien is subject to being

deported if he changes his employment does not make

him legally incapable of establishing a Maryland

domicile or of intending to remain or remaining here

indefinitely. In Alves v. Alves, supra, the District of

Columbia Court of Appeals held specifically that a G-4

alien was domiciled in the District of Columbia. In that

divorce case the appellant wife challenged the finding

of the lower court that her husband was a D.C.

domiciliary on the ground here argued that “the

appellee did not have the legal capacity to form an

intention to become a domiciliary of the District of

Columbia since he was living here at the grace of Great

Britain and United States.” (/d., at 114). The wife also

argued that the husband had to adjust his status to

permanent resident before he could become domiciled in

the District of Columbia.'* The Alves court rejected the

last contention holding that under the immigration

laws it is legally possible “for an alien to remain in the

United States for many years. . . without applying for

permanent residence” and that such a contention

wrongfully ignores, “the period of time [the alien had]

resided in the District of Columbia, his intention in

moving in‘o the District of Columbia and other relevant

12 Under 8 U.S.C. §1251(a)(9) an alien is subject to

deportation who— “(9) was admitted as a nonimmigrant and

failed to maintain the nonimmigrant status in which he was

admitted or to which it was changed . . ., or to comply with

the conditions of any such status.”

‘3 The domicile rule in the District of Columbia as quoted

by the court in Alves is substantially similar to the Maryland

rule:

. physical presence with an intent to abandon the

former domicile and to remain in the District of

Columbia for an indefinite period of time.” (Alves, supra,

at 114).

37a

factors.” ((Id., at 115). As to the first contention the

court held:

“The fact that appellee entered the United States

on a nonimmigrant visa . . . does not preclude a

finding that appellee could become domiciled in the

District of Columbia.

* = 7 = * *

... At best it might be argued appellee had a

floating intent to return to Great Britain conditi-

oned upon an uncertain event — his dis.nissal from

the I.M.F. — which event may never occur. But

such a floating intention to return to Great Britain

is not sufficient to require a holding that appellee

was still domiciled in Great Britain.” (footnotes

omitted). (/d., at 115-116).

Accord, Rzeszotarski v. Rzeszotarski, 296 A.2d 431 (D.C.

App. 1972); Gosschalk v. Gosschalk, 48 N.J. Super. 566,

138 A.2d774, aff'd, 28 N.J. 73, 145 A.2d 327 (1958). The

Court of Appeals of Maryland, as mentioned above, has

also held that a floating intent to return to a former

domicile at some future date does not negative the

intent to establish a new domicile. Shenton v. Abbott,

supra, at 533, 15 A.2d 906.

The Restatement (Second) of Conflicts recognizes in

§17, Comment g, that a refugee may acquire a domicile

of choice even if he is present in this country on a

temporary visa:

“Even in the latter situation, [refugee present on a

temporary visa] it is possible for a refugee to

acquire a domicile of choice in his asylum,

although the presumably temporary nature of his

stay may cast some doubt upon whether he has

formed the requisite attitude of mind toward it

. .” (Citations omitted). U/d., at 69).

The Restatement also states with respect to domiciliary

intent that:

“{I}f [one] does not intend to move at a definite

time, it is easier to find that he has this attitude of

mind than if he intends to move at a definite time.

38a

It is possible, however, for a person to have the

proper attitude of mind even though he does intend

to move at a definite time; although the more

distant that time is, the easier it is to find the

requirement satisfied.” (Jd., at 71).

The rule expressed in Alves and in the Restatement, as

applied to a G-4 alien, who presently intends to remain

in Maryland indefinitely but who may have to return to

his native country at the conclusion of his employment,

makes it clear that such a G-4 alien is not legally

incapable of establishing a Maryland domicile. Further-

more, as noted supra, there is nothing in the statutory

definition in 8 U.S.C. § 1101 of a G-4 alien, as opposed to

certain other types of nonimmigrant aliens, which

indicates that Congress sought to negate a domiciliary

intent on the part of a G-4 alien.

In summary, under Maryland law the plaintiffs’

fathers must be able to demonstrate physical presence

in Maryland, an intent to remain here indefinitely and

the legal capability to do so. The federal immigration

laws do not render the plaintiffs’ fathers legally

incapable of demonstrating and being able to carry out

a present intention to remain in Maryland indefinitely.

Plaintiffs’ fathers’ G-4 status, in fact, gives them that

precise status, residents of Maryland for an indefinite

period of time. This legal capacity coupled with

physical presence and sufficient evidence of the

requisite intent is all that the law of Maryland requires

to establish domicile.

Defendants place principal reliance on Revenue

Ruling 74-364 and Seren v. Douglas, 30 Colo. App. 110,

489 P.2d 601 (1971).

The Revenue Ruling squarely holds that a G-4 alien is

under a legal disability which renders him incapable of

forming the intention necessary to establish a domicile

in the United States. That holding is based on the fact

that a G-4 alien is required to depart at the expiration of

the period of his admission. However, as demonstrated

above, under federal law a G-4 alien is capable of

— ee ee ee eee fed

sud tie ah —

serch lille sundance Tami A “ecatiniaaten

39a

remaining in Maryland indefinitely and, therefore, has

the legal capacity to have the necessary intent to

establish a Maryland domicile while physically present

in Maryland. As an explication of the law of domicile,

this court believes the Revenue Ruling is in error.

Revenue Ruling 74-364 relies as do the defendants, on

Seren v. Dougias, supra. In that case, Seren, a student,

entered the United States in 1967 on a student visa

which expired in April, 1968. In July of 1968, after

Seren had married a University of Colorado coed, a

petition for an immigrant visa was granted which

entitled him to apply for status as a permanent resident

alien. On January 20, 1970, the United States Immigra-

tion and Naturalization Service granted Seren the

status of “lawful permanent resident.” The University

of Colorado contended that Seren, who had been a non-

student resident of Colorado between April, 1968, and

January, 1970, was under a legal disability prior to

January 20, 1970, to formulate the requisite intent to

become domiciled in Colorado. The University based its

contention on the fact that Seren had entered the

United States on a student visa and was a nonimmi-

grant alien classified under 8 U.S.C. § 1101(a\(15)(F)\(i)

as an alien with “a residence in a foreign country which

he has no intention of abandoning . . . who seeks to

enter the United States temporarily and solely for the

purpose of pursuing . . . a course of study... ..” With

respect to this argumen’, the court held:

“We agree that the federal statutes in question

did create a legal disability which would render

Seren incapable of forming the intent required by

state statute so long as he, in compliance with

federal law, was here on a legal basis which bound

him to not abandon his homeland. However, that

disability could, as a matter of fact and law, have

dissolved upon the expiration of his student visa.

At such time he could abandon his legal intent to

return to his homeland and seek status as a

permanent resident of the United States.” (Empha-

sis added).

40a

A G-4 alien is not bound by federal law “to not abandon

his homeland” and could at any time “abandon his

legal intent to return to his homeland and seek status

as a permanent resident of the United States.”

Therefore, the very language of the Seren court

warrants a holding that a G-4 alien is not under a legal

disability to establish a Maryland domicile. The Seren

court also held that the dissolution of Seren’s legal

disability was not contingent on his being granted

lawful permanent resident status on January 20, 1970,

but that the disability dissolved prior to that date.

In Re Gaffney’s Estate, 141 Misc. 453, 252 N.Y.S. 649

(14931), also relied on by the defendants, is distinguisha-

ble on at least two grounds. That case dealt with

whether Patrick Cassidy, who had “arrived in this

country only recently” (id., at 652) as a temporary

visitor for 3 months only, could qualify under New York

law to be appointed as administrator of his brother's

estate. New York law rendered incompetent one who

was an “alien not an inhabitant of this state.” In

finding that Cassidy was not competent, the court

relied on the fact that Cassidy was present only for 3

months on a visitor’s visa and would have to leave the

country at the end of that time. As distinguished from

Cassidy’s situation, the holder of a G-4 visa is not under

similar constraints. In noting that, “[AJlienage alone

does not disqualify an administrator, but there must be

adequate proof of his being an inhabitant’’ (citation

omitted) (id., at 653), the Gaffney’s Estate court

highlighted the second ground upon which that case is

distunguishable from this one. Far from deciding that a

nonimmigrant alien could never establish a domicile in

the United States, the court there decided only that Mr.

Cassidy did not establish by competent evidence that

he was an “inhabitant” of New York.

[10, 11] The presumption utilized by the University

of Maryland in enforcing its “In-State Policy” is that no

class of nonimmigrant aliens can establish a Maryland

domicile. As such, it is an irrebuttable presumption

4la

which is not universally true since G-4 aliens are not

legally incapable of establishing Maryland domicile.

That the University has “reasonable alternative means

of making the crucial determination” of a non-

immigrant alien’s domicile, Viandis v. Kline, supra 412

U.S. at 452, 93 S. Ct. at 2236, is demonstrated by the

fact that it makes just such a determination on a case-

by-case basis with regard to other students seeking to

pay domiciliary tuition rates under its “In-State

Policy.” The irrebuttable presumption relating to

nonimmigrant aliens encompassed by the University’s

“In-State Policy” therefore is an invalid measure of

domicile. '4

If the University were to seek to justify its treatment

of nonimmigrant aliens on the theory of cost equaliza-

tion, this argument must fail because basing a

conclusive presumption of non-domicile on nonimmi-

grant status would be as stated in Viandis “wholly

unrelated to that objective.” (/d., at 441, 93 S. Ct. 2230).

Nonimmigrant aliens, even those such as plaintiffs’

fathers whose salaries are exempt from state income

tax, who have resided in Maryland for 10 or 15 years, as

have plaintiffs’ fathers, might well have contributed far

more financial support to the University of Maryland

through payment of real property, sales and other taxes

than would have a student, financially independent for

at least 12 months, who maintained a domicile in

Maryland for 6 months prior to his class registration.

Yet such a student, who conceivably could have

contributed almost nothing to the Maryland tax base, is

allowed to prove Maryland domicile under the “In-State

Policy.”” Nor can the University’s policy be justified on

the ground of administrative certainty or administra-

tive convenience. Viandis v. Kline, supra, at 441, 93 S.

'* The fact that Congress, empowered by the Constitution

and statute to distinguish between citizens and aliens, may

legitimately draw lines to establish qualification require-

ments, under which certain aliens will be eligible for

federally funded programs and others will not, does not

necessarily raise parallel powers in the States. See Mathews

v. Diaz, 426 U.S. 67, 81, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976).

42a

Ct. 2230; Stanley v. Illinois, supra, 405 U.S. 656, 92 S.

Ct. 1208. Cf. City of Charlotte v. Local 660, etc., 426 U.S.

283, 96 S. Ct. 2036, 48 L. Ed. 2d 636 (1976).

Since the “In-State Policy” of the University of

Maryland, as applied to G-4 aliens, creates a constitu-

tionally impermissible irrebuttable presumption, it is

not necessary to reach the issues raised by plaintiffs’

equal protection and supremacy clause claims.

D. Relief

Declaratory relief and an injunction prohibiting the

University of Maryland from denying to the plaintiffs

in-state status solely because they or their parents are

holders of a visa under 8 U.S.C. §1101(a)(15\G\iv)

must be granted in this motion for summary judg-

ment.!> However, in addition plaintiffs also request this

court (1) to enjoin the defendants from failing to

‘S Neither declaratory nor injunctive relief with respect to

plaintiffs’ fathers’ tax-exempt status is warranted. Because

the University of Maryland automatically determined that

the plaintiffs’ fathers’, as G-4 aliens, were not Maryland

domiciliaries, the University never meaningfully applied

domiciliary criteria, see supra, to the plaintiffs. One of these

criteria is whether or not the person whose domicile is being

determined pays Maryland income tax on all earned income.

The record does not establish that the University would

universally deny “in-state” status to students solely on this

ground. In fact, the defendants have admitted that a parent

holding an immigrant visa could establish Maryland

domicile regardless of a Maryland income tax exemption, if

that parent could demonstrate the other relevant domiciliary

criteria. (Defendants’ answers to plaintiffs’ requests for

admissions, Paper No. 7, €10). This issue is not ripe for

resolution in this case. Since the University of Maryland will

be required, henceforth, to review G-4 aliens in the same

manner as citizens and immigrant aliens, the court will

presume that al! of these individuals will be given the same

kind of review. The court will also presume that, consistent

with the University’s admission, it will not preclude any

student from establishing that he or she is a domiciliary of

Maryland solely because of that student’s parent’s Maryland

tax-exempt status under an international agreement. If the

. University were to act contrarily, serious constitutional

questions would arise.

43a

classify them as in-state students, (2) to certify this suit

as a class action, (3) to frame appropriate relief for the

class so certified, and (4) to award plaintiffs costs and

attorneys’ fees.

In order for plaintiffs to prevail on this motion for

summary judgment in their request that they be

classified as in-state students, the court must find that

there is no dispute concerning the facts material to a

determination that each of the fathers of the plaintiffs,

on whom each plaintiff is dependent, is domiciled in

Maryland.

[12] The law in this Circuit governing summary

judgment is very strict. In order for summary judgment to

be granted there can be no dispute as to any material fact

or as to any controlling inference to be drawn from

material facts. American Fidelity and Casualty Co. v.

London and Edinburgh Insurance Co., 354 F.2d 214, 216

(4th Cir. 1965). The burden is on the plaintiffs to establish

that there are no such disputes, and any doubt as to the

existence of a disputed material fact or inference drawn

therefrom must be resolved against the plaintiffs.

Phoenix Savings and Loan, Inc. v. Aetna Casualty &

Surety Co., 381 F.2d 245, 249 (4th Cir. 1967).

Plaintiffs, in attempting to establish that the undis-

puted facts warrant a holding that their fathers are

domiciled in Maryland, rely on their Verified Complaint

and the exhibits attached thereto and on the affidavits

filed as part of their motion for summary judgment.

[13,14] Plaintiffs’ reliance cn the Verified Complaint

filed in this case is misplaced. Since the relevant domicile

for tuition purposes under the valid portion of the

University’s “In-State Policy” is the domicile of plain-

tiffs’ fathers, any verification of facts alleged in the

complaint by the plaintiffs themselves is of little

evidentiary value on the crucial question of the present

intent of each father to remain permanently or indefi-

nitely in Maryland. Counsel for the plaintiffs have not

filed any affidavits of plaintiffs’ fathers in this case

which contain relevant evidence of this intent. The

44a

complaint itself is only verified by the plaintiffs with

respect to the allegations that pertain to them (Paper No.

1). In addition, the verifications are only on “information

and belief.” While it is true that sworn and notarized

pleadings may sometimes be considered the equivalent of

affidavits in summary judgments proceedings, Fletcher

v. Norfolk Newspapers, Inc., 239 F.2d 169 (4th Cir. 1956);

Dabney v. Cunningham, 317 F. Supp. 57 (E.D. Va. 1970),

the verified pleadings in those cases contain only facts

about which the pleader had personal knowledge and

which concerned him directly. In order for a verified

complaint to substitute for an affidavit, it must meet the

standards of F. R. Civ. P. 56(e), that is it must be made “on

personal knowledge, . . . set forth such facts as would be

admissible in evidence, and. . . show affirmatively that

the affiant is competent to testify to the matters therein.”

Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974); Fowler

v. Southern Bell Telephone & Telegraph Co., 343 F.2d 150

(5th Cir. 1965); Avery v. Norfolk & Western Railway Co.,

52 F.R.D. 356 (N.D. Ohio 1971); 6 J. Moore, Federal

Practice, 4 56.11[3], pp. 56-249-251 and 4 56.22[1], pp. 56-

1303-1311 (1976). [Hereinafter, Moore]. The Verified

Complaint in this case does not meet this standard and is

inadequate to support plaintiffs’ motion for summary

judgment.

The fact that defendants filed no opposing affidavits

setting out contradictory facts and merely relied on

denials in their Answer (Paper No. 3, §§ 16, 18, and 21)

concerning facts relevant to plaintiffs’ fathers’ domicile

is not significant in this case. Such denials would have

been insufficient under F. R. Civ. P. 56(e) if the plaintiffs

had met their burden of establishing that the relevant

facts were not in dispute and that they were entitled to

judgment as a matter of law. However, if a party moving

for summary judgment fails to meet his burden, it is not

incumbent upon the opposing party to do anything.

Adickes v. Kress & Co., 398 U.S. 144, 159-161, 90 S. Ct.

1598, 26 L. Ed. 2d 142 (1970); F. R. Civ. P. 56(c); 6 Moore,

§ 56.11[3] p. 56-252, 4 56.23, p. 56-1390.

45a

[15-17] Of course, under F. R. Civ. P. 56(c) plaintiffs

may rely solely on the pleadings and do not have to file

any supporting data if they choose not to do so. A motion

made by a claimant on the basis of the complaint and

answer is functionally equivalent to a motion for

judgment on the pleadings under Rule12(c). Schwartz v.

Compagnie General Transatlantique, 405 F.2d 270 (2d

Cir. 1968); 6 Moore, 956.02[3], p. 56-29; 4 56.09; 4 56.11[1-1];

q 56.11[2], p. 56-210. However, because of defendants’

Answer has raised an issue of material fact with respect

to the allegations in the Verified Complaint concerning

plaintiffs’ fathers’ domiciles (Paper No. 3, 44 16, 18, and

21), plaintiffs may not prevail on this ground either. /d.;

2A Moore, 412.15. Since there is nothing in the entire

record with respect to the fathers of plaintiffs Hogg and

Moreno on which plaintiffs can rely in meeting their

burden under Rule 56 on this factual question, this court

cannot now enjoin the defendant from failing to classify

students Hogg and Moreno as in-state students on the

basis of the current record.

With respect to the father of plaintiff Otero, the record

does contain some material filed as exhibits to the

Verified Complaint which is entitled to consideration on

this issue. In the process of attempting to convince the

University of Maryland that plaintiff Otero was domi-

ciled in Maryland, Rene Otero, plaintiff's father, partially

completed under oath the University of Maryland form

entitled “Petition for In-State Classification for Admis-

sion, Tuition and Charge-Differential Purposes.” This

form requires that the parent upon whom the student’s

domicile depends fill out sections II and IV of the form.

In section II Rene Otero has stated that he occupies real

property in Maryland as his domicile on a year-round

basis; that he has resided in Chevy Chase, Maryland

since March 1, 1965; that all or substantially ail of his

possessions are in the State of Maryland; that Mrs. Otero

is registered to vote in Maryland; that he has a Maryland

driver’s license and that his car is registered in Maryland.

Rene Otero has also filed copies, certified by him to be true

copies and sworn to before a notary, of his wife’s

46a

Maryland driver’s license, his driver’s license, his

Maryland automobile registration for 3 automobiles, and

his son’s W-2 forms and Maryland Income Tax form, all

listing Chevy Chase as their address. It is also undis-

puted from the record that Rene Otero is a G-4 alien

employed with Inter-American Development Bank; that

Mrs. Otero is an American citizen; that Rene Otero has

not made any attempt to adjust his status from G-4 to

resident alien; and that his current employer has a policy

which would prevent him from making that adjustment

while he is so employed. While all of these facts are

material in the determination of Mr. Otero’s domicile, the

record is still deficient in evidence concerning his

domiciliary intent. This crucial factor of intent is one

which is particularly difficult to resolve on the basis of a

bare written record and summary judgment can seldom

be granted in cases where intent is in issue. Denny v.

Seaboard Lacquer, Inc., 487 F.2d 485 (4th Cir. 1973);

Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th Cir.

1974); See Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464, 473, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962).

Therefore, even though the court has before it some

evidence of Mr. Otero’s domicile, summary judgment

cannot be entered in favor of plaintiff Juan Pablo Otero.

E. Class Action

[18] Plaintiffs seek to maintain this suit as a class

action under F. R. Civ. P. 23(b)(2) which applies to suits in

which:

(2) the party opposing the class has acted or refused

to act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the

class as a whole.”

It is clear that the University’s actions with respect to

classifying G-4 aliens or their dependents as out-of-state

students have been taken in accordance with official

University policy and thus “on grounds generally

applicable to the class.” This case is then appropriately

brought under 23(b)(2), assuming plaintiffs meet the

47a

additional burdens imposed upon them to establish that

this suit should proceed as a class action.

F.R. Civ. P. 23(a) provides 4 additional prerequisites

for the maintenance of a class action. A class action

may be maintained under Rule 23 only if:

“(1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions of

law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of

the claims or defenses of the class, and (4) the

representative parties will fairly and adequately

protect the interests of the class.”

The burden is on the plaintiffs to meet these and all of

the requirements for the maintenance of a class action.

Carracter v. Morgan, 491 F.2d 458 (4th Cir. 1973);

Poindexter v. Teubert, 462 F.2d 1096 (4th Cir. 1972);

McAdory v. Scientific Research Instruments, Inc., 355

F. Supp. 468 (D. Md. 1973). In order to determine if

plaintiffs have met their burden, the appropriate class

which plaintiffs may represent must be determined.

Plaintiffs seek to represent a class consisting of all

persons residing in Maryland who now attend or may

in the fucure wish to attend the University of Maryland

and who:

(a) hold or ar. named within a visa under 8

U.S.C. §1101(a)(15)-(G)(iv) or are financially de-

pendent upon another person holding or named

within such visa; or

(b) pay no Maryland State income tax on a

salary or wages from an international organization

under the provisions of an international agreement

to which the United States is a party or are

financially dependent upon another person who

does not pay such tax on such salary or wages for

such reasons.

Plaintiffs seek declaratory and injunctive relief on

behalf of the members of the class.

The thrust of the class aspects of plaintiffs’ suit is to

force the University to provide an opportunity for

48a

prospective class members to demonstrate Maryland

domicile. The court believes that the class which the

plaintiffs seek to represent is too broad and must be

limited to individuals satisfying criteria (a) above,

residing in Maryland, who are current students at the

University of Maryland, or who chose not to apply to

the University of Maryland because of the challenged

policies but would now be interested in attending if

given an opportunity to establish “in-state” status, or

who are currently students in senior high schools in

Maryland. It is these individuals against whom

defendants’ policies have already operated or would

operate in the near future if they were to continue in

effect.

Defendants’ proposed limitation of the class to those

students, either G-4’s or their dependents, who have

previously attempted to demonstrate Maryland domi-

cile is too narrow. Cf. Player v. State of Alabama, Dept.

of Pensions and Security, 400 F. Supp. 249, 253, 259

(M.D. Ala. 1975). Under the University’s policy such an

attempt would have been futile. Individuals who have

been or will soon be discouraged from applying to the

University of Maryland because of the University’s

policies regarding G-4 aliens are appropriate class

members. Cypress v. Newport News General and

Nonsectarian Hospital Ass’n, 375 F.2d 648, 653 (4th Cir.

1967); Long v. Sapp, 502 F.2d 34, 43 (5th Cir. 1974);

Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239,

254 (3rd Cir. 1975), cert. denied 421 U.S. 1011, 95S. Ct.

2415, 44 L. Ed. 2d 679 (1976); cf. Green v. Cauthen, 379

F. Supp. 361, 371-2 (D.S.C. 1974).

The court finds no merit in defendants’ preliminary

argument that plaintiffs have abandoned the class

action aspects of this suit. Plaintiffs’ motion for class

certification, filed on November 18, 1975, in a suit

instituted on May 27, 1975, and before any hearings on

the merits, was timely and allows the court to determine

if class certification is appropriate within the “‘practica-

ble” time limits of Rule 23(c)(1).

49a

Since elsewhere in this opinion the court has already

determined that plaintiffs do have standing to sue on

their own behalf, defendants’ objection to a class action

suit on that ground must also fail. Defendants have not

disputed, nor could they, that there are “questions of law

. . common to the class” as required by Rule 23(a)(2)

since injunctive and declaratory relief for all the class

members depends on the resolution of the same question

of law, the legality of the University of Maryland’s policy

prohibiting G-4 aliens an opportunity to show that they

are domiciled in Maryland. For the same reason,

plaintiffs have also met the “typical claims” requirement

of Rule 23(a)(3). Defendants have not attempted to argue

to the contrary on this question. Finally, since plaintiffs’

able and diligent counsel have adequately and fairly

represented the interest of the class heretofore described

and since the plaintiffs do not have interests antagonistic

to those of the class, Rule 23(a\4) has been satisfied.

Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975);

Wetzel v. Liberty Mutual Insurance Co., supra; American

a System, Inc. v. Harlow, 65 F.R.D. 94 (D. Md.

1974).

Defendants’ major argument in opposition to class

certification is that plaintiffs have not satisfied the

“numerosity” requirement of Rule 23(a)(1) which requires

the plaintiffs to demonstrate that joinder of all members

is impracticable. This rule requires plaintiffs to make a

positive showing that joinder is impracticable. Tolbert v.

Western Electric Co., 56 F.R.D. 108, 113 (N.D. Ga. 1972).

Neither bare allegations of numerosity nor speculation as

to the number of parties will suffice. Kinsey v. Legg,

Mason & Co., Inc., 60 F.R.D. 91 (D.D.C. 1973); Tuma v.

American Can Co., 367 F. Supp. 1178 (D. N.J. 1973).

However, a plaintiff need not establish a class size with

precision; it is sufficient if he presents some information

from which the number of class members can be

approximated. Sims v. Parke Davis & Co., 334 F. Supp.

774 (D. Mich. 1971), cert. denied 405 U.S. 978, 92 S. Ct.

1196, 31 L. Ed. 2d 254 (1972). In this regard, the Advisory

50a

Committee on the Federal Rules of Civil Procedure noted

in discussing Rule 23(b)(2):

“ _ . Action or inaction is directed to a class within

the meaning of this subdivision even if it has taken

effect or is threatened only as to one or a few

members of the class, provided it is based on grounds

which have general application to the class.

“Tllustrative are various actions in the civil-rights

field where a party is charged with discriminating

unlawfully against a class, usually one whose

numbers are incapable of specific enumeration. . .”

(citations omitted). 39 F.R.D. 73, 102.

Plaintiffs have submitted the affidavits of Arnold

Weiss and John D. North (attachments to Paper No. 16)in

support of their motion for class certification. Mr. Weiss’s

affidavit indicates that as of May, 1975, there were “157

children between the ages of 16-25 holding G-4 visas and

dependent on and living in homes of Bank employees

living in Maryland.” Mr. North indicates that, based on a

random sample at the end of 1975 of 15% of the World

Bank’s employees, just under 1,000 employees holding G-

4 visas reside in Marylar 1. Mr. North, based on hard 1973

data, and ratios based on the 1975 sample, states that

“there are today (Jan. 8, 1976), very approximately,

nearly 500 dependent children, about one-third of them of

the age of 15 or over, living in the homes of World Bank

employees who hold G-4 visas and who reside in the State

of Maryland.” These data are as specific as are required,

given the fact that this is a Rule 23(b)(2) class action suit

and that plaintiffs have demonstrated the unconstitu-

tionality of the University of Maryland’s policies in

question here. The court finds that plaintiffs have met the

burden imposed on them by Rule 23(a)(1) to demonstrate

that the class described supra is so numerous that joinder

of all members would be impracticable. Therefore the

court will grant plaintiffs’ motion for class certification

for a class to be defined as follows:

All persons now residing in Maryland who are

current students at the University of Maryland, or

who chose not to apply to the University of

Sla

Maryland because of the challenged policies but

would now be interested in attending if given an

opportunity to establish in-state status, or who are

currently students in senior high schools in

Maryland, and who

(a) hold or are named within a visa under 8

U.S.C. §1101(aX15\G)iv) or are financially

dependent upon a person holding or named

within such a visa.

Declaratory relief is granted to the members of this

class and defendants are enjoined from denying to the

members of this class in-state status solely because they

or their parents are holders of a visa under 8 U.S.C.

§ 1101(a)(15)(G\iv).

Since the issue of the domicile of the fathers of the

three named plaintiffs remains to be resolved, the court

will not decide at this time the question of court costs

and attorneys’ fees.

Therefore, it is this 13th day of July, 1976, OR-

DERED:

(1) That defendant University of Maryland’s motion

for summary judgment is GRANTED and the Univer-

sity of Maryland is dismissed as a defendant in this

case;

(2) That defendant Dr. Wilson H. Elkins’ motion for

summary judgment is DENIED:

(3) That plaintiffs’ motion for class action determi-

nation is GRANTED and that the class is certified as

described in the foregoing opinion;

(4) That plaintiffs’ motion for summary judgment is

partially GRANTED and partially DENIED;

(5) That the “In-State Policy” of the University of

Maryland which denies to G-4 aliens by the use of an

irrebuttable presumption of non-domicile the opportun-

ity to establish “in-state” status is unconstitutional as

it is in violation of the Due Process Clause of the

Fourteenth Amendment; and

52a

(6) That defendant Dr. Wilson H. Elkins is hereby

enjoined from enforcing the University of Maryland’s

“In-State Policy” with respect to the named plaintiffs

and the members of their class by denying them the

opportunity to demonstrate that they or any of them are

entitled to “in-state” status for purposes of tuition and

charge differential determinations.

In The United States District Court

for The District Of Maryland

Civil Action No. M-76-691

Juan Carlos Moreno, et al.,

Plaintiffs,

University of Maryland and

Dr. Wilson H. Elkins,

President, University of

Maryland,

Defendants.

ORDER

(Filed August 3, 1976)

The Court having read and considered the Motion to

Stay Order Pending Appeal and Memorandum in

Support thereof, filed on behalf of Defendant Elkins on

July 31, 1976;

And the Court having heard oral argument of counsel

for the respective parties in open court on August 2,

1976, at which time it was represented by counsel for

Defendant Elkins that were a stay granted (1) the

University of Maryland, for the fall 1976 semester and

any other semester that commences before the appellate

process is concluded, as to each student whose status is

currently determined by a G-4 visa and whose request

for reclassification, if filed prior to the last day

available for registration for the fall 1976 semester,

53a

would have been granted but for the stay, would refund

the difference in tuition and other charges between the

“out-of-state” charges assessed and actually paid and

the “in-state” charges that would have been assessed,

in the event the Court’s Order of July 13, 1976, were

finally affirmed on appeal, and (2) the University of

Maryland would publicize in some reasonable manner

the condition that in order to be eligible to be considered

for the refund described above, each student whose

status is currently determined by a G-4 visa would be

required to file with the University of Maryland a

request for reclassification to “in-state” status prior to

the last day available for registration for the fall 1976

semester;

And the Court having determined from the foregoing

pleadings and arguments that the prerequisites for the

granting of a stay pending appeal, stated in Long v.

Robinson, 432 F.2d 977 (4th Cir. 1970), have been

satisfied;

IT IS, this 3rd day of August, 1976, by the United

States District Court for the District of Maryland, for

the reasons more fully set forth in open court,

ORDERED, That the Motion to Stay Order Pending

Appeal be granted as prayed and that the effectiveness

of paragraphs (5) and (6) of the Court’s Order contained

in its Opinion and Order filed July 13, 1976, be, and the

same hereby is, STAYED.

s/ JAMES R. MILLER, JR.,

United States District Judge.

54a

United States Court c* Appeals

for The Fourth Circuit

No. 76-2049

Juan Carlos Moreno, Juan Pablo

Otero, and Clare B. Hogg,

Appellees,

Wilson H. Elkins, President,

University of Maryland,

Appellant,

and

University of Maryland,

Defendant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. James R. Miller, Jr.,

District Judge.

Heard: April 4, 1977

Decided: April 28, 1977.

Before WINTER, RUTZNER, and HALL, Circuit Judges.

Jack T. Roach and Robert A. Zarnoch, Assistant

Attorneys General of Maryland (Francis B. Burch,

Attorney General of Maryland, David Feldman,

Assistant Attorney General of Maryland on brief) for

appellant; Alfred L. Scanlan (R. James Woolsey, John

55a

D. Aldock and Shea and Gardner on brief) for

appellees.

PER CURIAM:

The University of Maryland appeals the district court’s

ruling that, for purposes of determining admission,

tuition rates, and charge differentials, students may not

be denied “in state” status solely because they hold G-4

visas. For the reasons lucidly stated by the district court,

we affirm that court’s judgment. See Moreno v. Univer-

sity of Maryland, 420 F. Supp. 541 (D. Md. 1976).

Affirmed.

United States Court of Appeals

for The Fourth Circuit

No. 76-2049

Wilson H. Elkins, President,

University of Maryland,

Appellant,

Juan Caros Moreno, et al.

Appellees.

ORDER

(Filed May 23, 1977)

Upon consideration of the appellant’s petition for

rehearing and suggestion for rehearing en banc, and no

judge having requested a poll on the suggestion for

rehearing en banc,

It is, therefore, ORDERED, That the petition for

rehearing be and it is hereby denied.

56a

Entered at the direction of Judge Butzner for a panel

consisting of Judge Winter, Judge Butzner and Judge

Hall.

For the Court,

‘s/ WreiiaM K. Sate, II,

Clerk.

United States Court of Appeals

for The Fourth Circuit

No. 76-2049

Juan Carlos Moreno, Juan Pablo Otero

and Clare B. Hogg,

Appellees,

Wilson H. Elkins, President,

University of Maryland,

Appellant,

and

University of Maryland,

Defendant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. James R. Miller,

Jr., District Judge.

(Filed May 26, 1977)

Upon consideration of the appellant’s motion for stay

of mandate,

IT IS ACCORDINGLY ADJUDGED AND ORDERED

that the mandate is stayed for a period of thirty (30) days

unless the period is extended for cause shown on the same

57a

terms as the district court originally granted its stay

namely that should the appellant’s petition for writ of

certiorari prove unsuccessful, then those members of

appellees’ class who filed timely requests for reclassifica-

tion to “in-state” status would receive a refund of excess

fees paid during the pendency of the stay.

Entered for the panel consisting of Judges Winter,

Butzner and Hall by direction.

For the Court,

WILLIAM K. Sate II,

Clerk.

A True Copy,Test:

William K. Slate, II, Clerk,

By Marilyn J. Kocen,

Deputy Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.