Petitioners Brief — Elkins v. Moreno

iy veeprennm Ulu, U. we

{ FILED \

NOV 251977

$< errr

In THE

Supreme Court of the United States

OcTOBER TERM 1977

No. 77-154

WILSON H. ELKINS, PRESIDENT,

UNIVERSITY OF MARYLAND,

Petitioner,

Vv.

JUAN CARLOS MORENO, ET AL.,

Respondents.

On Wait oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE FourRTH CIRCUIT

BRIEF OF PETITIONER

Francis B. Burcu,

Attorney General

of Maryland,

Grorce A. N1ILson,

Deputy Attorney General

Davip H. FELDMAN,

TABLE OF CONTENTS

I

i

CONSTITUTIONAL, STATUTORY, AND REGULATORY

TS LIL

ARGUMENT:

I. Under the principles set forth in Wein-

ITI.

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

its progeny, the University’s in-state

policy does not establish an irrebuttable

presumption in violation of due process

Even if Viandis is applicable and is

held to require an irrebuttable presump-

tion be universally true, the presump-

tion of nondomicile for nonimmigrants

SY CU CO eee

Recent decisions of this Court have so

eroded Vlandis v. Kline, 412 U.S. 441

(1973), that this Court should now

declare it overruled .0..........ccccccccccceeeeeeeeees

I i ee

1l

16

18

39

ii

TABLE OF CITATIONS

Cases PAGE

Alves v. Alves, 362 A.2d 111 (D. C. 1970) .......... 35

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

RL ee 18, 34

Cleveland Board of Education v. La Fleur, 414

eo passim

Dandridge v. Williams, 397 U.S. 471 (1970) ....... 23, 31

Dunn v. Blumstein, 405 U.S. 330 (1972) .............. 20

Examining Board of Engineers, Architects, &

Surveyors v. Flores de Otero, 426 U.S. 572

I o.scint ines aastaeiteelamatihialaialiiaiatiatiiaditeaeeeneeiants 29

Fiallo v. Bell, 480 U.S. 787 (1977) ..........ccccccceeseees 18, 25

Hayes v. Board of Regents of Kentucky State

University, 362 F. Supp. 1173 (E.D. Ky. 1973) 36

Kirk v. Board of Regents of University of

California, 78 Cal. Rptr. 260 (1969), appeal

dismissed, 396 U.S. 554 (1970) ................0 19, 26, 31

Knebel v. Hein, 429 U.S. 288 (1977) .......cscseseeees 17, 18,

19, 24, 26, 31, 33

Maddy v. Jones, 230 Md. 172, 126 A.2d 482 (1962) 34

Mathews v. Diaz, 426 U.S. 67 (1976) ......... 17, 27, 29, 31

McGowan v. Maryland, 366 U.S. 420 (1961) ...... 23

Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977) . 38

Moreno v. University of Maryland, 420 F. Supp.

FG en 2

Moreno v. University of Maryland, 556 F.2d 573

CS TE SEI -teicssl canendtidintaarisingbateninammmpeenbeuntio 1

Murgia v. Massachusetts Board of Retirement,

8 EF Fe Ce 18, 24

Nyquist v. Mauclet, __ U.S.___, 53 L. Ed. 2d 63

STII ectensitedinciainah ineiiasiiiieateitiainpeinemapinmmepeaeaencceniiiaiaiel passim

7 PAGE

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) .0..................0.000. 17, 26

Santangelo v. Santangelo, 137 Conn. 404, 78

ED bikiiisichiialinadittetaiittaaenial tatiana 35

Seren v. Douglas, 30 Colo. App. 110, 489 P.2d 601

eT Ee ee 37

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

AD crcencesetcnnecternnegpenenemnncennerenenayeemmanntenaninnen 34

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

dismissed, 430 U.S. 961 (1977) .......cccccccscecseees 18, 25

Stanley v. Illinois, 405 U.S. 645 (1972) .............. passim

Starns v. Malkerson, 401 U.S. 985 (1971) ........... passim

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

Se ee ee 18, 24

Viandis v. Kline, 412 U.S. 441 (1973) ........0........ passim

Waish, Adm’r v. Crouse, 232 Md. 386, 194 A.2d

ff ES ee 34

Weinberger v. Salfi, 422 U.S. 749 (1975) ............ passim

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

(1888) ......... eemratetil lciiaieasinicissiniiiiiiiaiiaiiciaaiaaadaiainds 28

Williamson v. Lee Optical Co., 348 U.S. 483

a ee en Ce 23

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

pnd SRE treet SOP Lie OSE eee ee 28

Statutes and Regulations

Constitution of the United States:

I 2

United States Code:

Aliens & Nationality,

8 U.S.C. §1101(aX 15 Fi) ................e 37

8 U.S.C.§ 1101(aX(15\(G)i)&(iv) 2.0.0.0... 2,18

ie: SE enti eetictinsitietetitisncetizhtinaded 3, 18, 37

2 4, PRIETO 3, 18, 34

iv

PAGE

Federal Rule of Appellate Procedure 40, 28 U.S.C. 2

International Organizations Immunities Act 22

A ee 3

Judicial Code, 28 U.S.C.

EE 2

OE GD OI ancccccecncecscocsencncscsccccccsccescceses 12

SOD. cexepocescasecensasnensennensanemmennenanenasqonsnnssneness 2

United States Supreme Court Rule 22, 28 U.S.C. 2

Federal Regulation:

Aliens & Nationality, 8 C.F.R. § 214.1 (1977) ..4, 18,34

Maryland Policy:

University of Maryland — Determination of In-

State Status for Admission, Tuition, and

Charge — Differential Purposes (Effective

Nn oe passim

Administrative Rulings:

Internal Revenue Service, Revenue Ruling 74-

Eee 37

Books and Treatises:

M. Jacobs, Law of Domicile, § 134 (1887) ........... 28

Restatement (Second) of Conflict of Laws, § 11,

EE eee es 36

Law Reviews:

Chase, The Premature Demise of Irrebuttable

Presumptions, 47 U. Colo. C. Rev. 653 (1976) 38

Rosberg, Aliens and Equal Protection: Why Not

the Right to Vote?, 75 Mich. L. Rev. 1092

EIR SS Benen FORED BENS S LON tee een EIeS 31, 38

Note, Does Domicile Bear a Single Meaning? 55

Colum. L. Rev. 589 (1955) ................cscscccsssoeees 36

The Supreme Court, 1974 Term, 89 Harv. L. Rev.

GS SID aciiisuisteineicchisnndsitiindiineeeniiinisinaiinpuntion 18

In THE

Supreme Court of the United States

OcTOBER TERM 1977

No. 77-154

WILSON H. ELKINS, PReEsIDENT,

UNIVERSITY OF MARYLAND,

Petitioner,

v.

JUAN CARLOS MORENO, &T AL.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF PETITIONER

OPINIONS BELOW

The per curiam opinion of the United States Court of

Appeals for the Fourth Circuit is unpublished, but its

issuance is reported at 556 F.2d 573 (4th Cir. 1977); the

text of this opinion appears in the Appendix to the

Petition for a Writ of Certiorari (APC 54a).'! The order

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

unreported and appears in the Appendix to the Petition

for a Writ of Certiorari (APC 55a). The opinion and

order of the United States District Court for the District

1 References to the Appendix to the Petition for a Writ of

Certiorari are cited as “APC,” and references to the Appendix

herein as “A.”

2

of Maryland was filed on July 13, 1976, in Moreno v.

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

(APC 8a).

JURISDICTION

jurisdiction of this Court is premised upon 28

uae § 1254(1). 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. A

Petition for a Writ of Certiorari was filed within the 90

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

this Court, and was granted on October 11, 1977.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

INVOLVED

Constitution of the United States

Amendment XIV, §1 ip ae

All ns born or naturalized in the Um

eee ane 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

any person within its jurisdiction the equal

protection of the laws.

United States Code

Title 8, § 110(a\(15)(G)@) and (iv)

The term “immigrant” means every alien except

an ain who is within one of the following classes

of non-immigrant aliens—

. * «

3

(G)i) a designated principal resident represen-

tative of a foreign government 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 anizations Immunities Act (59 Stat. 669),

accredi resident members of the staff of such

representatives, and members of his or their

immediate family.

* * *

(iv) officers, or employees of such international

egeentane, and the members of their immediate

amilies.

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 iration of such time or

upon failure to maintain the status under which he

was admitted, or to maintain any status subse

quently acquired under section 248 [§ 1258 of this

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

Title 8, § 1202(c)

(c) Every alien applying for a nonimmigrant

visa and for alien registration shall make applica-

tion therefor in such form and manner as shall 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.

4

Code of Federal Regulations

Title 8, §214.1 Requirements for admission,

extension, and maintenance of status.

(a) General. Every nonimmigrant alien appli-

cant for admission or extension of in the

United States shall establish that he is a ible

to the United States or that a ground of inadmissi-

bility 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(a26) 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; 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 1-352 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 pursuant to 22 CFR

41.125(f) shall, if otherwise admissible, be readmit-

ted for a period not to exceed the un period

of his initial admission or extension of stay which

had been — by on vate i » a

departure to foreign contiguous -

cent islands, as endorsed by the Service on the

Form I-94 issued in connection with the gc

nonimmigrant’s prior admission or stay an

presented by him, or as endorsed by the issuing

school official pd a meh vos on Form = or

DSP-66 presen a 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), Gi), Gii), or (iv) of the Act (members of which

5

classes are not required to obtain extensions of

stay if they continue to be so recognized by the

of State as members of such classes);

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

States tem ily 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

— of admission has not expired, shall apply on

md yen and may be — vb pr without

a , 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

nonimmigrant classification may be included in

his application and may be granted the same

extension without fee. failure to file a timely

application is found to be excusable, an extension

ma op pentes from the time of expiration of

authori stay. When because of reasons beyond

his control, or special circumstances, an alien

needs an oe of less than 30 days

beyond his authorized stay within which to effect

his departure, he may be granted such time without

— t. page for extension. Extensions to

mem of a famil y group shall be for the same

period; if one mem is eligible for only a six-

month extension and another for a twelve-month

extension, the shorter period shall govern. For

—— relating to cancellation or breaching of

nds, see Part 103 of this chapter.

_ (b) Termination of status. Within the period of

initial admission or extension of stay, the nonim-

migrant 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.

6

(c) Employment. A nonimmigrant in the United

x. in 2 class defined in section 101(a)(15)(B) of

the Act as a temporary visitor for pleasure, or

section 101(aX15XC) of the Act as an alien in

transit through this country, may not 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 employment or he

has been granted permission to engage in employ-

ment 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 unautho-

rized employment by a nonimmigrant constitutes a

failure to maintain status within the meaning of

section 241(a)(9) of the Act.

University of Maryland Determination of

In-State Status for Admission, Tuition,

and Charge-Differential Purposes*

An initial determination of in-state status for

admission, tuition, and charge-differential pur-

poses 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 determination 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 redetermi-

nation.

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.

ee

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 citi-

zens, 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.

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 Univer-

sity.

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 months immediately

prior to the last day available for registra-

tion for the forthcoming semester, unless

such student has been assigned for educa-

tional 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

* Draft of yy 31, 1973 as amended on September 7,

for the prospective or enrolled student.

1973. ed the Board of Regents on September 21,

1973 to effective with any term of the University

beginning on or after January 1, 1974.

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.

2. > Se Se © Ce! Se, oD

adoptive parent, a legally-appointed guardian, and

a person who stands in loco parentis to the student.

3. A nee & penne to Sgy eenases

marriage.

4. 0 Rishi tn cinta anid thine 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.

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 affidevit, in addition to other proof,

documentation of the student’s earnings for the

year immediately preceding the last day of regis-

tration for the semester for which the determina-

tion is requested. Such documentation 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 asserts that he is financixily

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 consecu-

tive 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. i all owned motor vehicles in Mary-

and.

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

10

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 Inter-

campus Review Committee (IRC). If the decision of

the THC io ddivesse to Ham, & student may farther

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 ex-

tended 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

—— any excess fees and charges will be

re ;

NOTE: The deadline for meeting all requirements

for an in-state status and for submitting all

documents for reclassification is the last day of late

registration for the semester the student wishes to

be classified as an in-state student.

QUESTION PRESENTED

Whether the decisions below erred in applying

Supreme Court precedents on irrebuttable presump-

tions, disregarded the principles articulated in Wein-

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

concluded that the University of Maryland’s policy of

denying in-state status for tuition and fee purposes to

nonimmigrants holding G-4 visas establishes an

irrebuttable presumption violative of the due process

clause of the fourteenth amendment to the United

States Constitution?

11

STATEMENT OF THE CASE

Following the decision of this Court in Vilandis 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 nonimmigrant aliens as beinz under

a legal disability which precludes the intent to be

domiciled in Maryland, the University awards in-state

status only *o “United States citizens and .. . immi-

grant aliens lawfully admitted for permanent residence

in accordance with the laws of the United States.” Even

these individuals do not qualify automatically 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 determination.) For

students who are not United States citizens or perman-

ent resident aliens (or are the dependent children of

financially responsible parents holding similar nonim-

migrant status), the University does not further

examine other domiciliary factors because such individ-

uals cannot have the requisite legal intent to establish

Maryland domicile. However, the University recog-

_ ? Among the domiciliary indicia 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.

’ 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

12

nizes that citizens and aliens who are lawfully admitted

for permanent residence 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 domiciliar-

ies and to nonimmigrants who, by definition, are not

Maryland domiciliaries; it benefits citizens who are

domiciled in Maryland, as well as aliens who are

Maryland domiciliaries.

Even nonimmigrants are not permanently precluded

by the University policy from qualifying for in-state

status. A financially responsible parent who adjusts his

status from nonimmigrant to that of permanent

resident alien is no longer disabled from exhibiting the

necessary domiciliary indicia. The same is true if a

nonimmigrant student becomes financially independ-

ent and, like one of the Respondents (Juan Otero),

adjusts his status to that of a permanent resident alien.

Moreover, the University’s three-step appellate process

is available 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 nonimmi-

grant aliens who held G-4 visas,‘ as did their fathers,

permanently or indefinitely in land. For

of this obey only one d ante wath teh ars pry

given time.

‘ A “G-4 alien” is one class of nonimmigrants; it consists

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

13

who were employed by certain international organiza-

tions based in Washington, D.C., viz., the Inter-

American Development Bank (IDB) and the Interna-

tional Bank for Reconstruction and Development

(World Bank). In particular, the students challenged as

ay aa ; and the ‘members of their immediate

ilies.” 8°U.S.C. §1101(aX TS¥pxiv). A G-4 nonimmigrant is

admitted to the United States “for such time and under such

conditions as the Attorney General may by regulations

prescribe.” 8 U.S.C. § 1184(a).

Pursuant to the regulations for the admission of aonimmi-

grant aliens into the United States, a nonimmigrant 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

nonimmigrant status.” 8 C.F.R. § 214.1. In addition, an alien

applying for a nonimmigrant visa must state under oath on

his application “the purpose and length of his intended stay

- rn beer 2 § 1202ic).

us, enti ent to nonimmigrant status by a person

and his family is derived from the circumstances of that

alien’s employment with an international organization, and

such status with its attendant permission to remain in the

United States terminates at any time that the employment

with an international organization ceases.

Under federal law, employees of the IDB and the World

Bank who hold G4 visas are the beneficiaries of various

privileges and immunities, including exemption from federal

and state income tax levies. Articles of t of the

International Bank for Reconstruction and t, 60

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

inter-American Development Bank, 10 U.S.T. 3029, T.LA:S.

No. 4397; 22 U.S.C. § 285id); 26 U.S.C. § 893(a).

* Respondents Moreno and Otero are natives of Western

Hemisphere countries, Paraguay and Bolivia, respectively

(APC 12a-13a); Hogg is a native of an Eastern Hemisphere

country, the United Kingdom (APC 15a). The former are

children of IDB employees and the latter of a World Bank

employee (APC 12a-15a). Amounts spent by their ts for

their support were $3,000, plus tuition paid to the University,

for Moreno (1974), Ex. 1, Att. 1 to Plaintiffs’ Complaint, p. 8

(R. 23) and $6,000 for Hogg (1974), Ex. 3, Att. 1 to Plaintiffs’

Complaint, p. 4 (R. 95), specific amounts not being alleged in

the case of Otero. Ex. 2, Att. 1 to Plaintiffs’ Complaint, pp.5

4

14

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

6(R. 61-62). Wages earned by the students range from $567 for

Moreno (1974), Ex. 1, Att. 1 to Plaintiffs’ Complaint, p. 9 (R.

24) to $2,479 for Otero (1973). Ex. 2, Att. 1 to Plaintiffs’

Complaint, p. 17 (R. 73). am

Their fathers hold lucrative and responsible tions with

their respective employers. Manuel Moreno has been em-

ployed by the IDB since 1960 and is a Arne of the

professional staff’ of the Bank. Ex. 1 Att. 1 to Plaintiffs’

Complaint, p. 18 Ss 33). Rene Otero has also worked for the

IDB since 1960 and is assigned to the Bank’s legal

department. Ex. 2 Att. 1 to Plaintiffs’ Complaint, p. 9 (R. 65).

In 1974, Mr. Moreno received a salary of $26,380 plus a $2,550

dependency allowance. Ex. 1 Att. 1 to Plaintiff's Complaint,

p. 18) (R. 33). The IDB pays a dependency allowance to

employees of $675 annually for a spouse whose own annual

income is less than $10,000 and $400 annually per child (A.

25a-27a).

World Bank allowances to employees are even a.

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

Program Appropriation Biil, 1977 (94th Congress, 2d Session)

at 104-05. In addition, the World Bank by way of a “tuition

equalization subsidy” reimburses staff members for the

difference between in-state and out-of-state tuition charged

by the University of Maryland (A. 40a-42a)

None of the fathers pay income tax on compensation

received from their respective international organization

process tigation, students were represen

rege =~ py their ve international

15

status for tuition and charge differential purposes to

holders of G-4 visas or those who are financially

dependent on persons holding such nonimmigrant

status.

After a hearing on April 9, 1976, the district court, on

July 13, 1976, filed an opinion (APC 8a) holding that

the University’s in-state policy as applied to G+ 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 nondomicile for G- aliens, the Univer-

sity denied Respondents 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 nondomicile could

not be justified on the basis of cost equalization or

administrative convenience because it was not (accord-

ing to the court) universally true and because the

University had a reasonable alternative means of

making a domicile determination for holders of G4

visas (viz., the application of the eight non-exclusive

indicia of domicile). Ignored by the court was any

discussion of or reference to Weinherger v Salfi. 422

U.S. 749 (1975),* nor did the court attempt to apply the

principles of Salfi 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’ equa! protection claim.

The court enjoined the University’s President (the

University itself was dismissed as a party) from

jenying Respondents and members of their class in-

* Neither party called the case to the attention of the

district court.

16

state status “solely because they or their parents” hold

G-4 visas’ (APC 5la).

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

court of appeals, Petitioner contended that the princi-

ples of Salfi and subsequent “irrebuttable presumption”

decisions of this Court warranted reversal. Neverthe-

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

court of appeals affirmed the district court, eschewed

any discussion of or reference to Sal/fi and its progeny,

and in effect adopted the opinion of the district court

(APC 54a). A timely petition for rehearing by the full

court was filed, and denied on May 23, 1977 (APC 55a).

On May 26, 1977, upon Petitioner’s motion, the Fourth

Circuit stayed its mandate pending application to this

Court for a writ of certiorari (APC 56a).

A timely Petition for a Writ of Certiorari was filed

with this Court on July 28, 1977, and granted on

October 11, 1977.

SUMMARY OF ARGUMENT

Relying upon Viandis v. Kline, 412 U.S. 441 (1973);

Cleveland Board of Education v. LaFleur, 414 U.S. 632

(1974) and Stanley v. Illinois, 405 U.S. 645 (1972), the

lower courts erroneously concluded that the University

of Maryland’s in-state policy for admission, tuition, and

charge differentials creates an unconstitutional irrebut-

table presumption of non-domicile for nonimmigrants.

EFFECT OF SALFI

Under Weinberger v. Salfi, 422 U.S. 749 (1975), state

classifications not affecting fundamental liberties do

not create unconstitutional irrebuttable presumptions

or violate due process if rationally related to a

legitimate governmental objective. Basic human liber-

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

district court stayed those portions of its final order which

granted declaratory and injunctive relief (APC 52a).

17

ties "ad fundamental constitutional rights are not at

stake in this case. Compare San Antonio Independent

School District v. Rodriguez, 411 U.S. 1 (1973), with

Cleveland Board of Education v. LaFleur, supra, and

Stanley v. Illinois, supra.

INAPPLICABILITY OF VLANDIS

Vlandis v. Kline, supra, does not invalidate irrebutta-

ble presumptions which are not “permanent” in nature.

Here, if the parents of Respondents alter their immigra-

tion status to permanent resident alien or if the

students similarly alter their status and become

financially independent while students, they will be

entitled to qualify for in-state status on the same bases

as Maryland domiciliaries. See Starns v. Malkerson,

401 U.S. 985 (1971).

STATE INTERESTS

The challenged feature of the University’s in-state

policy bears a rational relationship to the University’s

purpose of limiting its expenditures, achieving cost

equalization, efficiently administering the in-state

determination and appeals process, and preventing

disparate treatment among categories of nonimmi-

grants with respect to tuition and fee differentials.

Knebel v. Hein, 429 U.S. 288 (1977); Weinberger v. Salfi,

supra; Mathews v. Diaz, 426 U.S. 67 (1976): Starns v.

Malkerson, supra. The policy does not create a classifi-

cation on the basis of alienage, because it is predicated

upon domicile and therefore disadvantages a class

which includes some United States citizens as well as

some aliens. Compare Nyquist v. Mauclet, __. US.

—__., 53 L. Ed. 2d 63 (1977).

TRUTH OF PRESUMPTION

Even if Viandis v. Kline, supra, is held to apply to

this case, the premise of the University’s in-state policy,

viz., that nonimmigrant aliens cannot acquire Mary-

18

land domicile, is universally true. Federal law and the

Maryland law of domicile preclude nonimmigrant

aliens and G-4’s in particular from establishing

domicile in the United States. 8 U.S.C.

§ 1101(a\15\(G)iv), §1184(a) & §1202(c); 8 C.F.R.

§ 214.1; Nyquist v. Mauclet, supra; Brafman v. Braf.-

man, 144 Md. 413, 125 A. 161 (1924).

VLANDIS SHOULD BE OVERRULED

Post-Vlandis decisions of this Court have so eroded the

theory and application of that case as to warrant its

overruling. Weinberger v. Salfi, supra; Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1 (1976); Murgia v.

Massachusetts Board of Retirement, 427 U.S. 307

(1976); Knebel v. Hein, supra; Skafte v. Rorex, 430 U.S.

961 (1977); Fiallo v. Bell, 430 U.S. 787 (1977).

ARGUMENT

I.

UNDER THE PRINCIPLES SET FORTH IN WEINBERGER v.

SALFI, 422 U.S. 749 (1975), AND ITS PROGENY, THE UNIVERSI-

TY’S IN-STATE POLICY DOES NOT ESTABLISH AN IRREBUT-

TABLE PRESUMPTION IN VIOLATION OF DUE PROCESS.

The principal issue in this case is whether the

irrebuttable presumption doctrine of Viandis « Kline,

412 U.S. 441 (1973), which has been severely limited if

not overruled by Weinberger v. Salfi, 422 U.S. 749

(1975), and subsequent decisions, must be applied to the

classification at stake here.

The decisions below hold that every irrebuttable

presumption not universally true in fact is unconstitu-

tional (APC 41a). Applying this now discredited

principle, see Weinberger v. Salfi, supra at 781 (1975);

The Supreme Court, 1974 Term, 89 Harv. L. Rev. 47, 78

(1975), the district court opinion adopted by the court of

appeals concluded that neither the Maryland law of

domicile nor United States immigration law precluded a

19

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 nonimmi-

grants, 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 presumption, the first and foremost being

Vlandis v. Kline, supra.

In Vilandis, a deeply split decision, this Court held

that a “permanent” irrebuttable presumption of nonres-

idence was created by a Connecticut statute which

provided 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. 412

U.S. at 443, 452. However, the majority opinion upheld

the power of the State to charge nonresidents higher

tuition and carefully distinguished two prior cases

relating to in-state/out-of-state tuition differentials.

The first, Starns v. Malkerson, 326 F. Supp. 234 (D.

Minn. 1970), aff'd, 401 U.S. 985 (1971), upheld Minneso-

ta’s requirement that no student is eligible for in-state

siuius for tuition purposes unless he has been a bona

fide domiciliary of the state for at least one year. The

second case, Kirk v. Board of Regents of University of

California, 78 Cal. Rptr. 260 (1969), appeal dismissed,

396 U.S. 554 (1970), upheld a similar one-year residency

requirement for in-state status. The Court noted that

under these schemes the student could rebut the

presumption of nonresidency after having lived in the

state one year by presenting other sufficient evidence to

20

show bona fide domicile within the state. 412 U.S. at

452. The Court added that:

By contrast, the Connecticut statute prevents a

student who applied to the University from out of

State, or within a year of living out of State, from

ever rebutting the presumption of nonresidence

during the entire time that he remains a student,

no matter how long he has been a bona fide

resident of the State for other purposes.

Id. (emphasis added).

Finally, after rejecting two of Connecticut’s proffered

justifications for the statutory scheme (viz., cost

equalization, preference for established residents), the

majority, in language usually associated with the

standard of “strict scrutiny” in equal protection cases,

see Dunn v. Blumstein, 405 U.S. 330 (1972), said that

the State’s interest in administrative efficiency and

certainty could not save the conclusive presumption

“where there are other reasonable and practicable

means of establishing the pertinent facts on which the

State’s objective is premised.” 412 U.S. at 451. The

Court identified that reasonable alternative as a system

permitting an out-of-state student the opportunity to

offer evidence of indicia of domiciliary intent. Id. at 454.

The lower courts in the present case also relied on two

other decisions of this Court to strike down the in-state

policy of the University of Maryland, viz., Stanley v.

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

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

ocala impermissible irrebuttable presump-

on.

21

Just as many lower 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 Vlandis 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-

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. Salfi 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

creaied an impermissible irrebuttabie presumption that

short-lived marriages were a sham aimed at obtaining

benefits and that the plaintiffs should be given an

® 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, 429 U.S. 288 (1977).

® Note, The Irrebuttable Presumption Doctrine in the

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

Conclusive Presumption Doctrine: Equal Process or Due

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

Presumptions: An Illusory Analysis, 27 Stan. L. Rev. 449

(1975).

>

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 Viandis, 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 dasic civil

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 Viandis. 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.

‘° In Turner v. Department of Employment Security, 423

U.S. 44, 181 (1975), a case decided after Salfi, this Court in a

per curiam opinion struck down a Utah law creating a

presumption of maternal incapacity “virtually identical to

the presumption found unconstitutional” in LaFleur. How-

ever, the Court was careful to adopt the limitations on the

irrebuttable presumption doctrine set out in Saifi. (“The

Fourteenth Amendment requires that __. [states] must

achieve legitimate state ends through more individualized

means when basic human liberties are at stake.”) Id. at 46

(emphasis added).

to

23

Id. at 772 (citation omitted).

Absent in Salfi was any of the language of “strict

scrutiny” or “least restrictive alternative’; instead, this

Court emphasized the “minimum rationality” equal-

protection standard applicable in social welfare cases.

See Dandridge v. Williams, 397 US. 471 (1970);

McGowan v. Maryland, 366 U.S. 420 (1961); Williamson

v. Lee Optical Co., 348 U.S. 483 (1955). Unlike Viandis,

Salfi demonstrated deference to a proffered administra-

tive convenience justification for the statutory scheme:

There is . . . no basis for our requiring individu-

alized determinations when Congress can ration-

ally conclude not only that generalized rules are

appropriate to its purposes and concerns, but also

that the difficulties - a

igh the i increments in the

aianaition of cee concern ands Gey

might be expected to produce.

422 U.S. at 785.

Most significantly, the fact that the “presumption” at

issue was not universally true did not aid the plaintiffs

case:

Indoubtedly [the statute] excludes some surviv-

a wives who ~~ 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 o

a 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.

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

24

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.

Id. at 772.

And Saifi 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 which reverse decisions that

applied the doctrine in the fashion of the district court

opinion adopted by the Fourth Circuit here.

In Murgia v. Massachusetts Board of Retirement, 427

U.S. 307 (1976), this Court reversed a threejudge

district court decision that invalidated a statute

providing for the mandatory retirement of State police

officers at 30 years of age. The age classification had

been challenged below on both due process and equal

protection grounds and the lower court had relied on

LaFleur to strike down the statute. Yet this Court

eschewed any discussion of irrebuttable presumptions

and upheld the statute applying traditional “rational

basis” equal protection analysis."

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

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

judge federal court that Viandis 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.” Jd. at 24.

** In Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977), both the

opinion of the court and the dissenting opinion noted that the

Murgic decision cast a cloud on the continued vitality of the

irrebuttable presumption doctrine.

25

In Knebel v. Hein, 429 U.S. 288, (1977), the Court |

overturned a three-judge court’s determination that a

federal food stamp regulation disallowing 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.

Id. at 297.

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

dismissed for want of substantial federal question, 430

U.S. 961 (1977), the Court summarily disposed of a

resident’s alien’s contention that a state ban against

voting by aliens created an irrebuttable presumption.

And in Fiallo v. Bell, 430 U.S. 787 (1977), the Court

rejected an irrebuttable presumption challenge to a

federal statute that denied preferential immigration

status to unwed fathers and their illegitimate offspring

despite the obvious fact that the challenged classifica-

tion, like those at issue in Stanley and LaFleur, affected

fundamenta! freedoms of choice in matters of marriage

and family life.*? This wealth of authority points to

only one conclusion, that the lower courts in this case

‘2 Other circuit courts of appeals were quick to perceive

that the irrebuttable presumption doctrine was on the

In Mogle *> Sevier County School Dist., 540 F.2d 478 (10th

Cir. 1976), cert. denied, 429 U.S. 1121 (1977), the Tenth

Circuit, in reliance upon Sal/fi, 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 destruc-

tive of numerous legislative judgments drawing lines.

5 é 485.

ey AY - v. Ciccone, 530 F.2d 199 (8th Cir. 1976), the

Eighth Circuit upheld the exclusion of long-term inmates

26

have fundamentally misapplied what little, if anything,

that may be left of the irrebuttable presumption

doctrine. '*

Contrary to the holding of the lower courts, LaFleur

and Stanley have no application here. Basic human

liberties and fundamental constitutional 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; Kirk v. Board of

Regents of the University of California, supra. And

state regulation of entitlement to limited education

benefits falls in the category of the social welfare

legislation reviewed in Salfi.'4

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 presumption. In the

normal case, well established standards of equal

protection and due process should be applied to deter-

mine 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 standards.

Id. at 504.

18 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

affecting fundamental constitutional rights is involved.

Petitioner respectfully submits, however, that the better

course, for the guidance of the lower federal judiciary, would

be to overrule the doctrine and to require traditional equal

protection analysis of state classifications.

‘4 Moreover, Respondents have not demonstrated “prop-

erty” or “liberty” interests necessary to invoke the guarantee

27

The classification at issue in this case, even assuming

it is regarded as a presumption, does not fall within the

prohibitions of Viandis. First, the presumption 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.

Unlike Vilandis, this case does not involve what was

viewed as ‘a bizarre pattern of discrimination.”

Vlandis v. Kline, supra at 459 (White, J.. concurring).

The line drawn by the University of Maryland is one

this Court has sustained. Mathews v. Diaz, 426 U.S. 67

(1976). See Nyquist v. Maucilet, ___ U.S. —__., 53 L. Ed.

2d 63 (1977). 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.'®

of due process, Ee interests are created and their

dimensions defined reference to state law. Bishop v.

Wood, 426 U.S. 341 (1976); Board of Regents v. Roth, 408 U.S.

564 (1972). The University’s in-state policy, promulgated

pursuant to the institution’s broad statutory powers, see MD.

ANN. Cope art. 77A, § 15 (1975), expressly does not provide

nonimmigrants with tuition subsidy accorded Maryland

domiciliaries. In addition, as this Court observed in Memoria!

Hospital v. Maricopa County, 415 U.S. 250, 260 n.15 (1974),

charging higher tuition fees to nonresident students cannot

be equated with the denial of basic subsistence often held to

call into play a “liberty” interest. See also Starns v.

Malkerson, supra; Kirk v. Board of Regents, supra.

'S It is not an unreasonable burden to require students or

their parents to adjust their immigrant status before the

28

Nor can it be said that the University’s in-state policy

speaks in terms of domicile but signifies otherwise in

the case on nonimmigrants — no more than Minneso-

ta’s policy in Starns of establishing a one-year

restriction on demonstrating 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 Starns 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 Sa/fi does not require that the

allegedly presumed fact be true in every case.What Salfi

does require is that the state classification be rationally

related to a legitimate objective. 422 U.S. at 772.

University will further consider proffered evidence of

domiciliary intent. First, whatever burdens may exist in this

regard are created by the immigration laws and not the

University. Cf. Fiallo v. Levy, 406 F. Supp. 162 (E.D.N-Y.

1975), aff'd, 430 U.S. 787 (1977). Second, as Respondents

freely conceded below, 4th Cir. Brief of Appellees at 41, a G4

in order to stay in this country will have to aajust his status

to permanent resident alien. And in fact Respondent Otero

and a daughter of Vincent Hogg (father of Respondent Hogg)

have so adjusted their status. Moreover, both Eastern

Hemisphere aliens like the Hoggs and Western Hemisphere

aliens like the Morenos and the Oteros can adjust their status

without leaving the country, 8 U.S.C. § 1255, and President

Carter has recently ordered a speedup in the processing of

applications for permanent residency. Undocumented Aliens

— Fact Sheet, Office of the White House Press Secretary, 13

WEEKLY Comp. oF Pres. Doc. 1169 (Aug. 8, 1977). In

addition, if as ts contended below, most G4

parents who even y become permanent residents do so as

parents of children who become citizens or permanent

_ residents, such parents need not obtain the labor certification

sometimes required by 8 U.S.C. § 1182.

eS ec ee. ee ee ee oe

29

The in asserted by Petitioner in support of the

chall in-state policy are entirely sufficient in light

of the mere rational basis required by Saifi.

In Examining Board of Engineers, Architects &

Surveyors v. Flores de Otero, 426 U.S. 572, 605-06 (1976),

this Court noted:

We do not suggest. . . that a State, Territory, or

local government, or certainly the Federal Govern-

ment, may not be permitted some discretion in

determining the circumstances under which it will

employ aliens or whether aliens may receive public

benefits or partake of public resources on the same

basis as citizens.

The line drawn by the University between permanent

resident aliens and nonimmigrants is identical to that

sustained by this Court in Mathews v. Diaz, supra. In

Diaz, the Court upheld a scheme which denied Medicare

benefits to nonimmigramts, but offered them to citizens

and permanent resident aliens (the very same classifi-

cation as 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

fe federal government’s plenary control over aliens,

the Court in Diaz noted t the only reason state

exclusion of some aliens 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~f-

staters and nonimmigrants are denied in-state status.

For these same reasons, Nyquist v. Mauclet, supra, 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

30

doing, the majority of the Court noted that the statute

was “directed at aliens and. . . only aliens are harmed

by it.” 53 L. Ed. 2d at 70. On the contrary, the

University’s in-state policy benefits the precise class

disadvantaged in Mauclet and is directed at and

disadvantages only nondomiciliaries, a class which

— some United States citizens as well as some

ens.

Moreover, as Mauclet suggests at the very least, id. at

68, and as Respondents conceded below, 4th Cir. Brief

of Appellees at 52, the classification created by the

University is correct in its premise that most nonimmi-

grants are precluded from establishing domicile.'® As

one perceptive legal scholar has noted, because nonim-

migrants cannot acquire domicile like permanent

resident aliens, a state should have greater latitude in

affecting the rights of the former group:

Resident aliens are on a citizenship track — after

five years they are eligible for naturalization. Their

right to remain in the United States does not

depend, however, on their obtaining citizenship.

They serve in the armed forces and were subject to

conscription under the selective service laws. They

pay taxes precisely like citizens of the United

States. They enjoy no immunity from state or

federal criminal law. Resident aliens enter the

United States with the intention of making this

country their home, and it appears that the great

majority of them remain here indefinitely. Nonresi-

dent aliens, by contrast, are admitted to the United

States for strictly limited periods of time that are

determined before they enter the United States.

Included in the category of nonresident aliens are

officials of foreign governments, temporary visitors

for business or ym wae foreign students, tempor-

ary workers and trainees, foreign journalists, and

'* As Petitioner urges below in Part II of this Argument,

this premise is universally true for all classes of nonimmi-

grants.

————* ee + ee —2ue

31

many others who are neither expected nor permit-

ted to remain in this country indefinitely.

G. Rosberg, Aliens and Equal Protection: Why Not the

Right to Vote?, 75 Mich. L. Rev. 1092, 1110-11 (1977)”

The limitation of governmental expenditures to those

with a greater affinity, a theory which supported the

classifications at issue in Diaz, Starns, and Kirk, 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, supra, this Court said,

“When this kind of policy choice must be made, we are

especially reluctant to question the exercise of Congres-

sional judgment.” 426 U.S. at 84. It is this kind of

rational judgment which the lower courts struck down

in the present case.

The University’s requirement that nonresidents and

nonimmigrants pay out-of-state rates bears a rational

relationship to the State’s purpose of financing,

operating, and maintaining the University of Mary-

land. In addition, the University’s in-state policy is a

rational attempt to achieve cost equalization between

those who have and those who have not recently

contributed to the State’s economy through employ-

ment, tax payments, and expenditures, viz., nonimmi-

grants and other nonresidents. See Starns v. Marker-

17 Professor Rosberg has noted that the number of

nonimmigrants admitted for temporary periods each year

exceeds 3 million while only 400,000 permanent resident

aliens are admitted annually. G. Rosberg, Aliens and Equal —

Protection: Why Not the Right to Vote? 75 Micu. L.

1092, 1110 (1977).

32

son, supra. This economic argument takes on greater

force in light of the fact that Respondents seek to carve

out an exception in Maryland’s even-handed adminis-

tration of its in-state policy for a privileged class not

subject to the full range of Maryland taxes.

Another sufficient interest recognized in Salfi, which

justifies Maryland’s treatment of nonimmigrant aliens,

is the administrative difficulties presented by individu-

alized hearings for the University’s large nonimmi-

grant student population. At the College Park under-

graduate campus of the University of Maryland, 14

staff members devote on the average a third of their

time administering the in-state determination and

appeal process at a cost of more than $60,000 annually.

In 1975 alone, 875 petitions for in-state classification

were filed. How much larger that figure would have

been if individualized hearings on additional domicil-

tary indicia were given to nonimmigrants is a matter of

speculation.'* But the University’s policy of limiting in-

state classification hearings for nonimmigrants to the

“objective criterion” of changes in their immigration

status reduces the need for and burden and expense of

long, complicated hearings (many of which may require

interpreters) with respect to other domiciliary indicia.

Weinberger v. Salfi, supra at 772. The University’s

policy promotes efficiency and reduces costs, so that

funds might be better spent on educational needs, by

requiring full-blown hearings on domiciliary indicia

only when a G-4 alien or other nonimmigrant student

has adjusted his immigration status.

Finally, Respondents’ constitutional claims are in

essence a demand for preferential treatment. In arguing

below that federal law does not preclude G-4 visa

holders from establishing domicile, they contend that

unlike those immigrants specifically required to main-

‘8 As of the fall of 1975, more than 550 nonimmigrants

were registered at the University of Maryland.

33

tain an overseas domicile and those whom they say

may enter the United States “for only a specific

temporary purpose,” G-4’s and a few other immigrant

categories are specially exempted by Congress from

such a burden. 4th Cir. Brief of Appellees at 51-52.

Thus, they in effect ask the University to administer its

in-state policy by adopting such proffered distinctions,

so as to favor a limited (and generally alluent see supra

at 13-14 n.5) category of nonimmigrants and to deny

benefits to other categories of nonimmigrants with

generally more meager resources. The prevention of

such disparate treatment is an additional reason for

upholding the University’s in-state policy. See Knebel v.

Hein, supra.

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. Salfi,

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 its

in-state policy comports with the requirements of due

process if they have any application to this case.

II.

EVEN IF VLANDIS IS APPLICABLE AND IS HELD TO RE-

QUIRE AN IRREBUTTABLE PRESUMPTION BE UNIVERSALLY

TRUE, THE PRESUMPTION OF NONDOMICILE FOR NONIMMI-

GRANTS IS TRUE IN ALL CASES.

Petitioner has argued that the University is not

constitutionally required to have an in-state policy

universally true in its premise that nonimmigrants are

disabled from establishing Maryland domicile as long

as that presumption is rationally b..sed. The University

also contends that even in the event its policy is found

under Viandis to create a permanent irrebuttable

presumption with respect to the domicile of holders of

34

G-4 visas, the student Respondents (or their financially

responsible parents) lack the capacity to become

Maryland domiciliaries and thus whatever presumption

may exist is in fact universally true.

The University’s in-state policy tracks the State’s law

of domicile to classify nonimmigrant aliens as nondom-

iciliaries. Under Maryland law domicile is defined as

the “place where a man has his true, fixed, permanent

home,” Shenton v. Abbott, 178 Md. 526, 15 A.2d 906, 908

(1940), and as “residence at a particular place accom-

panied by positive or presumptive proof of the intention

to remain there for an unlimited time.” Brafman uv.

Brafman, 144 Md. 413, 414, 125 A. 161 (1924).!® This

definition by its terms would seem to preclude those

who are not permanent resident aliens from acquiring

domicile. Finally, it should be noted that in the context

of entitlement to state benefits, the Maryland Court of

Appeals has been very strict in the application of its

law of domicile. See, e.g., Walsh, Adm’r v. Crouse, 232

Md. 386, 194 A.2d 107 (1963); Maddy v. Jones, 230 Md.

172, 126 A.2d 482 (1962). :

Nonimmigrant aliens, and G-4 visa holders in

particular, cannot establish the requisite intent neces-

sary to create a Maryland domicile for in-state tuition

purposes because of the terms and conditions upon

which they continue to reside in this country. A G-4

visa is granted for the sole purpose of entry and

residence during employment. An alien applying for a

nonimmigrant visa must state under oath the “length

of his intended stay in the United States.” 8 U.S.C.

§ 1202(c). Thus, unless he adjusts his status to that of

permanent resident alien, a G-4 can remain in this

country only for a period of finite and limited duration.

19 In addition, under Maryland law an individual must

have the legal capacity to change his domicile. Liberty Mut.

oe v. Craddock, 26 Md. App. 296, 303, 338 A.2d 363

ee ee as

samen tbe

35

The alien must leave upon termination of employment.

8 CFR § 214.1. And he represents an intent to do so

when applying for the visa. The acquisition of Mary-

land domicile requires an intent to establish a home

within the State without any present intention of

removing therefrom. Thus, it would appear impossible

as a matter of law for a person who has implicitly and

continuously maintained that he intends to leave this

country upon termination of employment (or other

specific event such as in the case of foreign students on

F-1 visas, the completion of their studies) to establish a

Maryland domicile. Furthermore, absent an attempt to

change from nonimmigrant to immigrant status, such a

party should be estopped from asserting that despite his

original pretentions, and despite the terms of his visa,

he really intends to permanently reside in this country.

Rather than relying on any principle of the Maryland

law of domicile, the lower court fashioned Maryland’s

law from a District of Columbia case declaring a G-4 to

be a domiciliary for the purpose of access to the courts.

Alves v. Alves, 362 A.2d 111 (D.C. 1970).2° A fundainen-

tal error in the lower courts’ analysis is its notion of

domicile as a fixed, unalterable concept. However,

domicile does not bear a fixed meaning and composi-

tion for all applications, and a determination that a

nonimmigrant alien is domiciled in a place for one

purpose does not necessitate that he is domiciled there

for another. For example, Connecticut permits a

nonresident alien to sue in its courts. Santangelo v.

Santangelo, 137 Conn. 404, 78 A.2d 245, 247 (1951) (“An

alien stands on the same footing as a non-resident. Our

public policy, as reflected in our constitution, is that our

20 Petitioner urged both the district court and the court of

appeals to defer to Maryland courts the ——— of whether

the state law precluded G-4’s from establishing Maryland

domicile, but the lower courts refused to abstain or certify the

question to the Court of Appeals of Maryland. See, e.g.,

Answer to Complaint (R. 116 et segq.).

36

courts should be open to ‘every person.” Yet the

University of Connecticut like practically every other

state university requires a nonimmigrant alien student

to become a permanent resident alien before he can

qualify for in-state status.

Another illustration is Hayes v. Board of Regents of

Kentucky State University, 362 F. Supp. 1173 (E.D. Ky.

1973), where a student, previously judged to be a

Kentucky domiciliary by voting authorities, challenged

a determination by the university that he was a

nondomiciliary for tuitional purposes. The plaintiff

contended that a decision by the former was binding

upon the latter. There the court noted:

This proposition is tenable only if ‘domicile’

bears a fixed meaning and composition for all

applications. If the scope of this term varies

according to the purpose served, Kentucky State

University is obviously not bound by the identifica-

tion of ‘domicile’ made by other agencies.

362 F. Supp. at 1173.

The court found that:

[Djomicile is not susceptible to a rigid and

arbitrary definition. The term will display varying

hues as its application shifts. Consequently, there

is no reason to presume that a determination of

domicile by voting authorities has binding effect

upon college officials.

Id. at 1175. See also RESTATEMENT (SECOND) OF

ConFLICT OF Laws § 11, Comment o (1971); Note, Does

Domicile Bear a Single Meaning?, 55 Colum. L. Rev.

589 (1955).

The truth of the premise underlying the University’s

in-state policy is supported by Internal Reverue Service

21 Santangelo v. Santangelo, 137 Conn. 404, 78 A.2d 245

(1951), also indicates that such access to the courts by aliens

is predicated on comity rather than domicile.

37

Revenue Ruling 74-364, 1974-2 C.B. 321. There, the

Internal Revenue Service held that the nondomiciliary

rate should be applied to the estates of G4 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.

Petitioner also relied below on Seren v. Douglas, 30

Colo. App. 110, 489 P.2d 601 (1971), which held that a

student (F-1) visa holder was precluded by federal law

(8 U.S.C. §1101(aX15XFXi) and §1184(a)) from estab-

lishing state domicile in order to qualify for in-state

tuition rates. In a highly selective reading of Seren, and

a fundamental! misreading of the immigration laws, the

lower courts herein concluded that only those nonimmi-

grants expressly required by law not to abandon their

residence in a foreign country (such as student visa

holders) were prevented from acquiring a new domicile.

On the contrary, the framers of 8 U.S.C. § 1101 found no

need to spell out the requirements of nonabandonment

of homeland for nonimmigrants who were obviously

destined for a temporary stay in the United States

2 Respondents have suggested that the force of Rev. Rul.

74-364 is weakened by a recent Tax Court decision, Escobar

v. Commissioner, 68 T.C. 304 (1977), which held that a G4

visa holder was a resident alien for income tax purposes

Sather Ghe toundent aon. tn eotination of tentiene 44 atealie

as did Rev. Rule 74-364, Escobar was decided on the basis of

income tax regulations which specifically enabled nonimmi-

grants to show residency for income tax purposes in cases of

“exceptional circumstances.” Treas. Reg. § 1.871-2(b).

38

keyed to their employment. Under the lower courts’

superficial analysis of 1101l(aX15), 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.

As Professor Rossberg has observed, such persons

“are neither expected nor permitted to remain in this

country indefinitely.” 75 Mich. L. Rev. at 1111. Finally,

this Court itself has lent credence to the truth of the

presumption said to be at issue in this case. In Nyquist

vu. Mauclet, supra, the majority opinion noted:

Since many aliens, such as those here on student

visas, may be precluded by federal law from

establishing a permanent residence in this country,

see, eg. 8 U.S.C. §1101(aX15XFXi); 22 C.F.R.

§ 41.45 (1976), the bar . . . [presented by the New

York statute] is of practical significance only to

resident aliens.

53 L. Ed. 2d at 68.

In summary, Petitioner urges that whether gauged by

the Maryland law of domicile or the immigration law,

the University’s decision to deny nonimmigrants

domicile and thus in-state status is universally true in

fact. Hence it cannot violate due process.

ITl.

RECENT DECISIONS OF THIS COURT HAVE SO ERODED

VLANDIS v. KLINE, 412 U.S. 441 (1973), THAT THIS COURT

SHOULD NOW DECLARE IT OVERRULED.

As the review of post-Salfi cases in Part I of this

Argument has indicated, as members of this Court have

noted, Weinberger v. Salfi, supra at 802-03, as legal

commentators have chronicled, see, e.g., J. Chase, The

Premature Demise of Irrebuttable Presumptions, 47 U.

Colo. L. Rev. 653 (1976), and as perceptive lower courts

have mused, see e.g., Miller v. Carter, 547 F.2d 1314

(7th Cir. 1977), the continued vitality of Viandis v.

39

Kline, supra, is in grave doubt. A doctrine which

demands perfection in legislative line-drawing even

when constitutionally protected interests are not at

stake, offends reasoned constitutional theory as well as

the very nature of law-making. Petitioner joins the

amici curiae in urging this Court to declare Vilandis

overruled.

CONCLUSION

In summary, Petitioner urges this Court to lay to rest

a fundamental misapplication of the irrebuttable

presumption doctrine, and that doctrine too. The lower

courts incorrectly 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 constitutionally wrong. For these

reasons, Petitioner contends that the judgment of the

United States Court of Appeals for the Fourth Circuit

should be reversed and Viandis v. Kline, supra, should

be overruled.

Respectfully submitted,

Francis B. BuRCH,

Attorney General

of Maryland,

Greorce A. NILSON,

Deputy Attorney General

Davip H. FELDMAN,

Assistant Attorney General,

Chief of Litigation,

Rosert A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Building,

Baltimore, Maryland 21202,

Attorneys for Petitioner.