Appendix — Toll v. Moreno

FILE

aO- 217K

BO-21 78 JUN 24 1961

No.

CLERK

Office-Supreme Court, U.S

wite

ALEXANDER L. STEVAS

In THE a

Supreme Court of the United States

Ocroser Term, 1980

JOHN S. TOLL, Presipent, Universiry or Maryann,

AND

UNIVERSITY OF MARYLAND,

Petitioners,

JUAN CARLOS MORENO, er at.

On Petition ror Writ or CERTIORARI TO THE

Unrtrep Srates Court or APPEALS FOR THE Fourtu Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Srepuen H. Sacus,

Attorney General of Maryland,

Davin H. Fevpman, .

Rosert A. ZARNOCH,

Assistant Attorneys General,

1400 One South Calvert Building,

Baltimore, Maryland 21202,

301-659-4026,

Attorneys for Petitioners.

June 24, 1981

The Daily Record Co., Beitimore, MD 21202 a

TABLE OF CONTENTS

Opinion of Fourth Circuit filed March 26, 1981

Stay Order of Fourth Circuit filed April 15, 1981

Stay Order of Fourth Circuit filed May 11, 1981

Stay Order of Fourth Circuit filed June 9, 1981

Memorandum of District Court filed October 31,

eS ee TN a cal ssoeesabbbeens

HIE Te a IITs sallicesndecesptibsnedasnenssocnnsconcnsonesasen

Order of District Court filed May 30, 1980 .........

Judgment of District Court filed May 30, 1980

Stay Order of District Court filed May 30, 1980

Amended Judgment of District Court filed June

RSI ditheastt aches teriiedtstianshstaasscovcssecscecctnesqenscsales

Opinion and Order of District Court filed July

MITT orncdenbvadocociisebsabuipiteisccocecezceccczactesaeinssescees

Stay Order of District Court filed August 3, 1976

Opinion of Fourth Circuit filed April 28, 1977

Order of Fourth Circuit filed May 23, 1977 .......

Stay Order of Fourth Circuit filed May 26, 1977

Opinion of Supreme Court filed April 19, 1978

Certification Order of Supreme Court filed April

SUNTEUIPTIITT Rivulb abissthihenbdlibsdeebotpsspezccocecccasenseocsiibaesion

Opinion of Court of Appeals of Maryland filed

PI BN cso. csasntaadsccneqpeccosscinneon

Opinion of Supreme Court filed April 30, 1979

Judgment of Supreme Court filed April 30, 1979

United States Code, Title 8, Section 1101(a)(15)

University of Maryland, Determination of In-

State Status for Admission, Tuition, and

Charge-Differential Purposes .................0:0+

167a

A Resolution Clarifying the Purposes, Meaning,

and Application of the Policy of the Universi-

ty of Maryland for Determination of In-State

Status for Admission, Tuition, and Charge-

Differential Purposes, Insofar As It Denies

In-State Status to Nonimmigrant Aliens ...... 172a

PAGE

la

OPINION

(Filed March 26, 1981)

No. 80-1400

United States Court of Appeals, Fourth Circuit

Juan Carlos MORENO; Juan Pablo

Otero; Clare B. Hogg; Renee

Otero, Jr., Appellees,

Vv,

UNIVERSITY OF MARYLAND, and

John S. Toll, President, University

of Maryland, Appellants.

(645 F.2d 217 (4th Cir. 1981))

Argued Jan. 8, 1981

Decided March 26, 1981

Before WINTER, RUSSELL, and ERVIN, Circuit

Judges.

PER CURIAM:

The President of the University of Maryland appeals

from the judgment of the district court ordering him to

permit plaintiffs to demonstrate their entitlement to

“In-State” status for purposes of tuition and other fees

charged by the University and to refund the difference

between the “Out-of-State” tuition and fees actually paid

by plaintiffs and the “In-State” tuition and fees they would

have paid had they been permitted to demonstrate their

entitlement thereto since July 13, 1976, the date of the

district court’s original judgment in their favor. We affirm.

2a

I

Plaintiffs represent a class of individuals holding “G-4”

visas who attend the University of Maryland. The named

plaintiffs are dependents of foreign national employees of

the Inter-American Development Bank and the Interna-

tional Bank for Reconstruction and Development. Em-

ployees of these development banks and other internation-

al organizations, together with their immediate families,

are classified as nonimmigrant aliens in this country

under 8 U.S.C. §1101(a)(15)(G)iv) (1976). Unlike most

nonimmigrant aliens, employees of international organiza-

tions often reside permanently in the United States; the

development banks, for example, are headquartered in

Washington, D.C. Plaintiffs reside in the Maryland sub-

urbs of Washington. Unlike most aliens holding immi-

grant visas, employees of international organizations are

exempt from federal and state income taxation, either by

treaty (e. g., Agreement Establishing the Inter-American

Development Bank art. XI, §9(b), [1959] U.S.T. 3029,

T.LA.S. No. 4397; Articles of Agreement of the Interna-

tional Bank for Reconstruction and Development art. VII,

§$9(b), 60 Stat. 1440, T.LA.S. No. 1502 (1945)), or by

statute, 22 U.S.C. § 288 (1976). The exemption, however,

applies only to “salaries and emoluments” paid by the

international organizations. The plaintiffs are subject to

federal and state taxation on all other income and to

federal, state and local excise, motor vehicle, real estate,

retail sales and other taxes and charges.

At the time piaintiffs originally brought this suit in

1975, the University of Maryland had a policy of charging

“Out-of-State” students higher tuition and other fees than

it charged “In-State” students. It based the determination

of “In-State” status on the student’s showing of Maryland

“domicile.” The policy was phrased such that plaintiffs,

despite their Maryland residency, could nt establish

Maryland “domicile,” because they were nonimmigrant

aliens. Plaintitis challenged the policy in the district court

pursuant to 42 U.S.C. § 1983 (1976) on the grounds that it

3a

denied them due process of law and equal protection under

the fourteenth amendment and that it interfered with

federal prerogatives over international agreements and

immigration in violation of the Supremacy Clause of

article VI.

The district court granted summary judgment to the

plaintiffs on July 13, 1976. Following Vilandis v. Kline, 412

US. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), it held

that the University’s policy of denying “In-State” status to

“G-4” nonimmigrant aliens created an “irrebuttable pre-

sumption” inconsistent with due process of law because

the presumption that the plaintiffs could not establish

Maryland “domicile” was not universally true and because

University officials refused to permit the plaintiffs to

prove “domicile.” The court ordered the University offi-

cials to allow students with “G-4” visas to demonstrate

Maryland “domicile” and thereby to qualify for “In-State”

status. It reserved for plenary consideration the question

of whether in fact the named plaintiffs could establish

“domicile,” and determined that it need not consider the

plaintiffs’ equal protection and Supremacy Clause claims

in view of the due process basis for relief. Moreno v.

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

The University president obtained a stay of the district

court order pending appeal. In lieu of granting “In-State”

status to students with “G-4” visas who could demonstrate

Maryland “domicile,” the University agreed to refund the

difference between the “Out-of-State” tuition and fees the

students would actually pay and the “In-State” tuition and

' In accordance with Monroe v. Pape, 265 U.S. 167, 81 S. Ct.

473, 5 L. Ed. 2d 492 (1961), the court dismissed the claim

against the University itself, holding it to be an agency of the

State of Maryland. Plaintiffs did not appeal this dismissal, so we

have no occasion to decide whether the University can be sued

under § 1983. Cf. Owen v. City of Independence, 445 U.S. 622,

100 S. Ct. 1398, 63 L. Ed. 24 673 (1980); Monell v. Department of

Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611

(1978); Long v. Richardson, 525 F.2d 74, 77 (6 Cir. 1975).

4a

fees they would have paid “but for the stay” in the event

the district court’s order “were finally affirmed on appeal.”

We affirmed the district court’s order without opinion,

Moreno v. Elkins, 556 F.2d 573 (4 Cir. 1977), and the

University president sought and obtained a writ of

certiorari from the Supreme Court. On the merits, the

Supreme Court stated that if the plaintiffs could establish

Maryland “domicile,” Viandis v. Kline would control, and

the Court would have to overrule that case to deny them

relief It declined to do so, choosing instead to obtain a

possibiy dispositive authoritative interpretation of state

law. The Court held that federal law did not prevent a

“G-4” nonimmigrant alien from establishing “domicile” in

this country, and that state law would thus determine the

issue. In the absence of Maryland precedent, the Court

certified the question of whether Maryland law prohibited

“G-4” nonimmigrant aliens from establishing Maryland

“domicile” to the Court of Appeals of Maryland. Elkins v.

Moreno, 435 U.S. 647, 98 S. Ct. 1338, 55 L. Ed. 2d 614

(1978).

The Court of Appeals of Maryland answered the ques-

tion in the negative. It held that neither the exemption

from state income taxation enjoyed by “G-4” aliens nor

their inability to vote in state elections precluded them

from becoming domiciled in Maryland, particularly in

view of the Supreme Court’s express holding that “G-4”

aliens could establish permanent residence in the United

States. Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979).?

While the case was pending before the Maryland court,

the University Board of Regents purported to “clarify” its

“In-State” status policy by passing a resolution on June

23, 1978, precluding nonimmigrant aliens from qualifying

for “In-State” status. The Supreme Court, supplementing

its earlier opinion, recognized that the resolution “fun-

damentally altered the posture of the case,” raising new

constitutional issues. It remanded the case to the district

7 John 5. Toll replaced Wilson H. Elkins, the original

— as President of the University of Maryland on July 1,

1978.

5a

court “for further consideration in light of our opinion and

judgment in Elkins, the opinion and judgment of the

Maryland Court of Appeals in Toll, and the Board of

Regents’ clarifying resolution of June 23, 1978.” Toll v.

Moreno, 441 U.S. 458, 461-62, 99 S. Ct. 2044, 2045-46, 60

L. Ed. 2d 354 (1979).

II

[1] On remand, the district court first reviewed the

status of the due process issue in the case. It concluded

that the Supreme Court’s original decision in Elkins and

the Maryland Court of Appeals’ decision in Toll estab-

lished plaintiffs’ ability to prove Maryland “domicile.” The

University’s policy prior to June 23, 1978, thus created an

impermissible irrebuttable presumption, denying due pro-

cess of law to the plaintiffs. The district court further held

that the University’s policy after that date, expressed in

the Board of Regents’ resolution, no longer created an

irrebuttable presumption, because under the University’s

more restrictive definition, nonimmigrant aliens could

never prove “domicile” and qualify for “In-State” status.

Moreno v. Toll, 480 F. Supp. 1116 (D. Md. 1979). For

reasons sufficiently stated in the opinion of the district

court, we agree that the University’s “In-State” status

policy denied due process of law to the plaintiffs prior to

June 23, 1978. ;

Ill

[2] The district court then considered the University’s

policy after June 23, 1978, challenged by plaintiffs on the

equal protection and Supremacy Clause grounds deferred

previously by the court. Applying strict scrutiny to the

suspect classification of nonimmigrant aliens, the district

court held that the University could not advance an

interest sufficiently substantial to justify the policy, and

that the application of the policy to plaintiffs denied them

equal protection of the laws. The court also held that the

policy constituted state interference with the federal

prerogative over immigration in violation of the Suprema-

6a

cy Clause. Moreno v. Toll, 489 F. Supp. 658 (D. Md. 1980).

For reasons sufficiently stated in this opinion of the

district court, we agree that the University’s “In-State”

status policy before and after June 23, 1978, is invalid

under the Constitution and that the plaintiffs are accor-

dingly entitled to relief.

IV

The district court reaffirmed its order enjoining the

University president from enforcing the “In-State” status

policy as applied to plaintiffs and directing him to permit

students with “G-4” visas to demonstrate Maryland domi-

cile. It also ordered the University president to refund the

difference between the “Out-of-State” tuition and fees

actually paid by those students who could have demons-

trated entitlement to “In-State” status since July 13, 1976,

the date of the original district court order, and the

“In-State” tuition and fees they would have paid had the

University not unconstitutionally applied its “In-State”

policy to “G-4” nonimmigrant aliens. The refund was

ordered pursuant to the University’s agreement to pay the

tuition and fees differential when it obtained a stay of the

original district court order of July 13, 1976, pending

appeal.

[3] The University now argues that this refund violates

the eleventh amendment because it represents retrospec-

tive relief requiring the payment of state funds. It cites

and relies upon Quern v. Jordan, 440 U.S. 332, 99 S. Ct.

1139, 59 L. Ed. 2d 358 (1979), Edelman v. Jordan, 415

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

Jagqnandan v. Giles, 538 F.2d 1166 (5 Cir. 1976), cert.

denied, 432 U.S. 910, 97 S. Ct. 2959, 53 L. Ed. 2d 1083

(1977). Those cases recognize, however, that a state can

waive its eleventh amendment immunity. The University

did so explicitly in this case by agreeing to pay the refunds

when it obtained the stay of the original district court

order.

7a

[4] The University now contends that the original order

was vacated, thus freeing it from its obligation. The

Supreme Court, however, only vacated the judgment of

this court in order to remand the case to the district court

for consideration of the “new issues of constitutional law”

raised by the policy change promulgated in the Board of

Regents’ resolution of June 23, 1978. Toll v. Moreno, 441

US. at 462, 99 S. Ct. at 2046. Contrary to the University’s

contention, the district court had continuing jurisdiction

over this suit because it expressly did not resolve all the

issues in the litigation by its original order. The Supreme

Court could not have simply affirmed the original order

because it provided for injunctive relief possibly no longer

relevant in view of the Board of Regents’ resolution. This

change in the posture of the case was attributable solely to

the action of the University. It should not, therefore,

provide a basis for excuse of the University’s obligation to

refund tuition and fee differentials agreed to in order to

prevent immediate implementation of the relief ordered by

the district court. The price the University paid to stay the

injunction of its constitutionally invalid policy was waiver

of its eleventh amendment immunity. It has failed to

vindicate that policy, so it must pay the refunds to which

it agreed.

AFFIRMED.

8a

ORDER

United States Court of Appeals

For the Fourth Circuit

No. 80-1400

Juan Carlos Moreno; Juan Pablo Otero; Clare B. Hogg;

Renee Otero, Jr.;

Appellees,

versus

University of Maryland,

and

John 8S. Toll, President, University of Maryland,

Appellants.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. James R. Miller,

District Judge.

(Filed April 15, 1981)

Upon motion of the appellants, by counsel, and for cause

shown,

IT IS ORDERED that the mandate in the above-entitled

case be, and it is hereby, stayed pending application of the

appellants in the Supreme Court of the United States for a

writ of certiorari to this Court. The stay shall not exceed

thirty (30) days unless the period is extended for cause

shown.

For the Court — by Direction.

/s/ Wii K. Stare, II

Clerk.

9a

ORDER

United States Court of Appeals

For the Fourth Circuit

No. 80-1400

Juan Carlos Moreno; Juan Pablo Otero; Clare B. Hogg;

Renee Otero, Jr.;

Appellees,

versus

University of Maryland,

and

John S. Toll, President, University of Maryland,

Appellants.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. James R. Miller,

District Judge.

(Filed May 11, 1981)

Upon motion of the appellants, by counsel, and for cause

shown,

IT IS ORDERED that the mandate in the above-entitled

case be, and it is hereby, stayed for an additional 30 days

to and including, June 15, 1981, pending application of the

appellants in the Supreme Court of the United States for a

writ of certiorari to this Court.

For the Court — by Direction.

/s/ Wiwiam K. Stare, II,

Clerk.

10a

United States Court of Appeals

For the Fourth Circuit

No. 80-1400

Juan Carlos Moreno, et al,

Appellees,

versus

University of Maryland and

John S. Toll, etc.,

Appellants.

ORDER

(Filed June 9, 1981)

Upon motion of the appellants, by counsel, and for cause

IT IS ORDERED that the mandate in the above entitled

case be, and it is hereby, stayed pending application of the

appellants in the Supreme Court of the United States for a

writ of certiorari to this court within the time allowed by

law or order of Supreme Court.

For the Court — By Direction.

/s/ WiutaM K. Sxare, II,

Clerk.

lla

United States District Court,

D. Maryland.

Juan Carlos MORENO et al., Plaintiffs,

v.

John S. TOLL, President, University

of Maryland, Defendant.

(480 F. Supp. 1116 (D. Md. 1979))

Civ. A. No. M-75-691.

MEMORANDUM

(Filed October 31, 1979)

JAMES R. MILLER, Jr., District Judge.

I. Statement of Facts

This case was initially filed as a class action by three

named plaintiffs, Juan Carlos Moreno, Juan Pablo Otero,

and Clare B. Hogg seeking declaratory and injunctive

relief against the University of Maryland and Dr. Wilson

H. Elkins, then president of the University. The plaintiffs

sought relief for themselves and for others similarly

situated from the University of Maryland’s “In-State

Policy” which prohibited non-immigrant aliens from estab-

lishing in-state student status at the University. The

plaintiffs claimed that this policy was invalid in that it

created a constitutionally impermissible irrebuttable pre-

sumption which denied them due process of the law, and

that it violated the Equal Protection Clause of the

Constitution.

The policy in question was adopted by the Board of

Regents of the University of Maryland, effective January

1, 1974. This policy creates two classes of students,

“in-state” and “out-of-state”, for purposes of considerations

12a

for admissions, tuition rates, and charge differentials. The

relevant provisions of the policy are as follows:

“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 perma-

nent residence in accordance with the laws of the

United States, in the following cases:

“a. Where a student is financially dependént 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 muintained his domicile in Maryland

for at least six consecutive months immediately prior

to the last day available for registration for the

forthcoming semester. (Emphasis added).

x * * * * “* ¥

“2. It is the policy of the University of Maryland to

attribute out-of-state status for admission, tuition,

and charge differential purposes in all other cases.

* * * * * *

“Definitions”

“1. A student is financially dependent if he re-

ceives 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 indepen-

dent 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 inten-

tion to live permanently or indefinitely in Maryland.

13a

For purposes of this policy only one domicile may be

maintained at a given time .

There are eight criteria which the University takes into

consideration in determining whether Maryland domicile

has been established by the relevant person. These criteria

are whether the individual:

a. Owns or rents and occupies real property in

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

b. Maintains a substantially uninterrupted pre-

sence within Maryland for six consecutive months,

including those months when the University 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 Maryland.

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.

In the present case, the three named plaintiffs were

students at the University of Maryland, College Park

Campus. Each was financially dependent upon a parent

who was in the country on a G-4 visa.' In each case the

University determined that these plaintiffs were not

' 8 U.S.C. §1101(a)(15)(A) through (L) provides the defini-

tions of the various classifications of nonimmigrant aliens.

Subsection (G), applicable in this case, provides as follows:

(G)i) a designated principal resident representative 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 organiza-

tion under the International Organizations Immunities Act

(59 Stat. 669) accredited resident members of the staff of

14a

entitled to “in-state” status. This ruling was initially

predicated upon the University’s belief that holders of G-4

visas were incapable of forming the requisite intent to

become Maryland domiciliaries. All three plaintiffs unsuc-

cessfully challenged this ruling through the University’s

appellate process in an attempt to show that they were, in

fact, Maryland domiciliaries.’ The plaintiffs then filed suit

in this court.

such representatives, and members of his or their immedi-

ate family;

(ii) other accredited representatives of such a foreign

government to such international organizations, and the

members of their immediate families;

(iii) an alien able to qualify under (i) or (ii) above except

for the fact that the government of which such alien is an

accredited representative is not recognized de jure by the

United States, or that the government of which he is an

accredited representative is not a member of such interna-

tional organization; and the members of his immediate

family;

(iv) officers, or employees of rich international organiza-

tions, and the members of their immediate families;

(v) attendants, servants, and personal employees of any

such representative, officer, or employee, and the members

of the immediate families of such attendants, servants, and

personal employees;

* The pertinent facts regarding these plaintiffs are as follows:

Plaintiff Moreno’s parents are both citizens of Paraguay

and holders of G-4 visas, as Moreno had worked for the

Inter-American Development Bank for 14 years as of the

time this suit was filed. The Morenos have owned a home

in Maryland since 1963; both parents are licensed to drive

in this State and their vehicle is registered here. Plaintiff

Moreno is also licensed to drive in Maryland. Plaintiff

Moreno filed tax returns in both the United States and

Maryland in 1973 and 1974.

Plaintiff Otero’s father is a citizen of Bolivia, also in the

country on a G-4 visa and working in the Inter-American

Development Bank; Mrs. Otero is a United States citizen.

The Oteros moved to Maryland and have owned a home

here since 1965.

Both the Oteros and their son are licensed to drive in

Maryland; their vehicle is registered in Maryland. Plaintiff

Otero filed both United States and Maryland tax returns in

15a

II. History of the Case

On July 13, 1976, this court filed an opinion in this case

following a hearing on motions by both parties for

summary judgment. Moreno v. University of Maryland,

420 F. Supp. 541 (D. Md. 1976). At that time the defendant

University of Maryland was dismissed from this action

since it was held not to be a “person” within the meaning

of 42 U.S.C. $1983. This court also granted plaintiffs’

motion to certify this matter .s a class action. The court

then held:

“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 oppor-

tunity to establish ‘in-state’ status is unconstitutional

as it is in violation of the Due Process Clause of the

Fourteenth Amendment, and (6) [t]hat 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.” Id. at 565.°

1972, 1973 and 1974. Plaintiff Otero applied to have his

visa status changed to that of an immigrant.

Plaintiff Hogg’s parents are citizens of the United

Kingdom and holders of G-4 visas. Mr. Hogg has been

employed by the International Bank since 1962. The Hoggs

moved to Maryland in 1970 and own a home in the state.

The Hoggs and their daughter are licensed to drive in

Maryland, and their vehicle is registered there. The Hoggs

paid taxes to both the United States and Maryland on

income other than Mr. Hogzg’s salary. Plaintiff Hogg also

filed tax returns in 1973 and 1974. :

All three families have paid state and local retail taxes,

real estate taxes, vehicle, fuel, excise and other taxes. The

plaintiffs’ complaint states an intent, both on the part of

‘the plaintiffs and their families, to remain in Maryland

indefinitely.

* It should be noted that these provisions of the court’s

original order were stayed, pending appeal, on condition that, in

the event the appeal was unsuccessful, the University agreed to

16a

Defendant appealed and the Court of Appeals for the

Fourth Circuit affirmed the district court decision 556

F.2d 573 (4th Cir. 1977). The Supreme Court granted

certiorari 434 U.S. 888, 98 S. Ct. 260, 54 L. Ed. 2d 173

(1977), to consider whether this decision conflicted with

the decision in Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct.

2457, 45 L. Ed. 2d 522 (1975).

The Supreme Court, in addressing this case, initially

held that “the federal constitutional issues in this case

cannot be resolved without deciding an important issue of

Maryland law.” It therefore certified the question of state

law to the Maryland Court of Appeals. Elkins v. Moreno,

435 U.S. 647, 98 S. Ct. 1338, 55 L. Ed. 2d 614 (1978).

In its consideration of the case, the Supreme Court

concluded that “the gravamen of [the] dispute is unques-

tionably whether, as a matter of federal and Maryland

law, G-4 aliens can form the intent necessary to allow

them to become domiciliaries of Maryland |since the]

University has consistently maintained throughout this

litigation that, notwithstanding other possible interpreta-

tions of its policy statement, its ‘paramount’ and controll-

ing concern is with domicile as defined by the courts of

Maryland.” Jd. at 658-659, 98 S. Ct. at 1345.‘ Accordingly

the Court found this case to be “squarely within Viandis°

as limited by Sa/fi* to those situations in which a State

‘purport(s] to be concerned with (domicile, but] at the same

time den[ies] to one seeking to meet its test of [domicile]

refund the difference between “out-of-state” and “in-state”

charges asressed tu eligible students with G-4 visas enrolled in

the University in the semester commencing in the Fall of 1976

or any semester thereafter.

* See Elkins v. Moreno, 435 U.S. 647 at 659 n.8, 98 S. Ct.

1338, 55 L. Ed. 2d 614 (1978) for the Supreme Court’s summary

of the defendant’s insistence that this case is governed by the

Maryland law of domicile.

* Viandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 39 L. Ed. 2d

63 (1973).

* Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed.

2d 522 (1975).

17a

the opportunity to show factors clearly bearing on that

issue.’ "Jd. at 660, 98 S. Ct. at 1346, quoting Weinberger v.

Salfi, 422 U.S. at 771, 95 S. Ct. 2457. The Court found it

unnecessary to review the Viandis rationale, given the

posture of the case.’ Accordingly, the Court certified the

following question to the Maryland Court of Appeals:

“Are persons residing in Maryland who hold or are

named in a visa under 8 U.S.C. § 1101(a)(15)(G)iv)

(1976 ed.), or who are financially dependent upon a

person holding or named in such a visa, incapable as

a matter of state law of becoming domiciliaries of

Maryland?” Jd. 435 U.S. at 668-669, 98 S. Ct. at 1351.

The Supreme Court upheld the conclusion of this court,

as a matter of federal law, that G-4 aliens are not

precluded from acquiring domicile in their state of resi-

dence. Id. at 665-667, 98 S. Ct. 1338.

Mr. Justice Rehnquist, joined by Chief Justice Burger,

filed a dissent in this action based on his conclusion that

the due process issue could be decided without resolving

the question of Maryland domicile law. The dissent

contended that domicile was not the sole criterion looked

upon by the University in this case.* Rather, domicile and

* The Court found no necessity to review the Constitutional

principles since the issue could apparently be avoided given

either a positive or negative response by the Maryland Court of

Appeals. If a G-4 alien were found to be incapable of obtaining

domicile in Maryland, then any “irrebuttable presumption”

would be universally true and therefore would present no

constitutional issue. If, however, G-4 aliens were found to be

capable of acquiring domicile in Maryland the Court found that

the University “apparently hald] no interest in continuing to

deny in-state status to G-4 aliens as a class if they can become

Maryland domiciliaries since it ha{d] indicated both [there] and

[here] that it would redraft its policy ‘to accommodate’ G-4

aliens were the Maryland courts to hold that G-4 aliens [could]

have the requisite intent.” Elkins v. Moreno, 435 U.S. at 661, 98

S. Ct. at 1347.

* The dissent contended that, under the applicable University

policy the criteria initially examined are whether the student is

either a “United States citizen” or an “immigrant alien lawfully

admitted for permanent residence.” If the student satisfied these

18a

other factors, including cost equalization, were reasons for

the University’s determination that nonimmigrant aliens

should not be accorded the benefits given under the

in-state policy to citizens and immigrant aliens domiciled

in the state. Accordingly, the dissent maintained that this

case does not fall squarely within the decision in Viandis

v. Kline” Id. at 675, 98 S. Ct. 1338. This dissent

maintained that the constitutional issues are controlled by

Weinberger v. Salfi, supra at note 5, and accordingly

concluded that the state law question need not be certified

in order to resolve the due process issues presented.

Following the Supreme Court decision, the Court of

Appeals of Maryland addressed the certified question of

whether or not G-4 aliens are precluded by state law from

acquiring domicile in Maryland. Tol/ v. Moreno, 284 Md.

425, 397 A.2d 1009 (1979). The court held that nothing in

the general Maryland law of domicile renders G-4 visa

holders, or their dependents, incapable of becoming domi-

ciled in Maryland. The court, however, noted that the

defendants’ posture in presenting this question had altered

significantly since the Supreme Court’s decision in this

case. The Court of Appeals referred to this as an apparent

attempt by the defendants to adopt the dissent’s conten-

tion that the Maryland law of domicile is not determina-

tive of this case, despite prior assertions to the contrary.

Consistent with the defendants’ altered view, the Board of

Regents of the University passed a resolution on June 23,

1978 declaring in part that:

“The Board of Regents deems its statutory author-

ity under the laws of Maryland to include the power,

right, or privilege to adopt a more restrictive defini-

tion of domicile for purposes of according in-state

initial criteria, the University then addressed the question of

domicile. Elkins v. Moreno, 435 U.S. at 670, 98 S. Ct. at 1351.

* Viandis v. Kline held that where a State “purport|s] to be

concerned with residency, it might not at the same time deny to

one seeking to meet its test of residency the opportunity to show

factors clearly bearing on that issue.” Weinberger v. Salfi, 422

US. at 771, 95 S. Ct. at 2470 (citing Viandis v. Kline, 412.U.S.

at 452, 93 S. Ct. 2230).

19a

status for admissions, tuitions, and charge differen-

tials than may be applicable generally or otherwise

under the Maryland common law.”

The Court of Appeals did not address this contention, as it

was beyond the scope of the question certified for its

consideration. Id. at 434, 397 A.2d 1013.

Following the decision in the Court of Appeals, the

defendants attempted to restvre this case to the active

docket of the Supreme Court. The Supreme Court initially

took note of the June 23, 1978 statement of the Board of

Regents of the University of Maryland entitled “A Resolu-

tion Clarifying the Purposes, Meaning, and Application of

the Policy of the University of Maryland for Determina-

tion of In-State Status for Admissions, Tuition, and

Charge-Differential Purposes, insofar as It Denies In-State

Status to Nonimmigrant Aliens.”"’ This statement, pur-

~The full text of the statement provides as follows:

“Purposes and Interests of In-State Policy. The Board of

Regents finds and declares that the policy approved on

September 21, 1973, insofar as it denies in-state status to

nonimmigrant aliens, serves a number of substantial

purposes and interests, whether or not it conforms to the

generally or otherwise applicable definition of domicile

under the Maryland common law, including but not limited

(a) limiting the University’s expenditures by granting a

higher subsidy toward the expenses of providing education-

al services to that class of persons who, as a class, are more

likely to have a close affinity to the State and to contribute

more to its economic well-being;

“(b) achieving equalization between the affected classes

of the expense of providing educational services;

“(c) efficiently administering the University’s in-state

determination and appeals process; and

“(d) preventing disparate treatment among categories of

nonimmigrants with respect to admissions, tuition, and

charge-differentials.

“Reaffirmation of In-State Policy. Regardless of whether or

not the policy approved by the Board of Regents on September

21, 1973, conforms with the generally or otherwise applicable

definition of domicile under the Maryland, common law, the

Board of Regents reaffirms that policy because it intends and

20a

porting to reaffirm the University’s policy regardless of

whether or not it conforms with the Maryland law of

domicile, runs counter to the Supreme Court’s original

premise that the University would re-draft its policy to

accommodate G-4 aliens were the Maryland courts to hold

them capable of acquiring domicile.'' Upon noting this, the

Supreme Court held that if domicile is not the “para-

mount” policy consideration, then this case no longer falls

squarely within Viandis as limited by Sa/fi,'* and accor-

dingly the new constitutional issues raised by the clar-

ifying resolution should be considered in the first instance

by this court. Toll v. Moreno, _. U.S. —_, 99 S. Ct.

2044, 60 L. Ed. 2d 354. Thus the case is before this court

on remand from the Supreme Court for “consideration in

light of [the] opinion and judgment in Elkins, the opinion

and judgment of the Maryland Court of Appeals in Toll,

and The Board of Regent’s Clarifying Resolution of June

23, 1978.”

II. Present Posture of the Case

This action is now before the court for an initial

determination of what issues remain to be resolved.

Pursuant to the court’s request, both parties have filed

memoranda outlining their respective positions regarding

the effect which the clarifying statement of the Board of

Regents has had on this case along with their views

regarding the identity of the other issues which remain for

the court’s decision. After having examined the briefs, the

court has concluded that an oral hearing on this matter

now before it is not necessary. Local Rule 6.

The plaintiffs initially contend that the following three

issues still remain in this case:

1. Whether the University’s in-state policy violates

the Equal Protection Clause of the Constitution;

deems it to serve a number of substantial purposes and

interests, including but not limited to those set forth above.”

" See, Elkins v. Moreno, 435 U.S. at 660,98 S.C 1338.

" See, notes 6-7, supra.

2la

2. Whether the policy still creates an unlawful

irrebuttable presumption as construed by Viandis v.

Kline; and

3. Whether the policy violates the Supremacy

Clause of the Constitution.

The University’s response details its position that the

issue of cost equalization, as highlighted by the Board of

Regent’s clarifying resolution. is not new to this case but

has been advanced by the defendants throughout the

history of this litigation. The defendants contend that the

Supreme Court decision in Moreno v. Toll, supra, has

effectively removed the irrebuttable presumption issue

from this case. é

The plaintiffs’ response is that the defendants’ position

throughout this litigation, up to the point of certification

to the Court of Appeals, was that the Maryland law of

domicile was the controlling question in this case. Plain-

tiffs maintain that the cost equalization arguments raised

in the course of this litigation were presented as a

rationalization of interests served by the policy. The

plaintiffs further maintain that the irrebuttable presump-

tion issue has not been removed from the case by the

Supreme Court’s decision but rather its continued viability

is one of the issues remanded for this court’s consideration.

A. The Irrebuttable Presumption Issue

1. The Effect of the Supreme Court’s Rulings

[1] The first issue which this court must address is that

of whether or not the second Supreme Court opinion

removed the irrebuttable presumption issue from this

case. Counsel have filed radically different readings of the

relevant portions of the Supreme Court opinion, with

plaintiffs’ counsel maintaining that this issue remains

viable and defendants’ counsel contending that the “law of

the case” is that this issue has been removed from the

case.

In my judgment, the correct interpretation of the Court’s

second decision can only be obtained by reading it in

22a

conjunction with the Court’s earlier opinion in Elkins v.

Moreno, 435 U.S. 647, 98 S. Ct. 1338, 55 L. Ed. 2d 614

(1978). The Court clearly premised its treatment in the

earlier case on two factors: “Because petitioner makes

domicile the ‘paramount’ policy consideration and because

respondents’ contention is that they can be domiciled in

Maryland but are conclusively presumed to be unable to

do so, this case is squarely within Viandis as limited by

Salfi. . .” Id. at 660, 98 S. Ct. at 1346. The Court based

this treatment on its finding that “the gravamen of [the]

dispute is unquestionably whether, as a matter of federal

and Maryland law, G-4 aliens can form the intent

necessary to allow them to become domiciliaries of Mary-

land. [Since the] University has consistently maintained

throughout this litigation that, notwithstanding other

possible interpretations of its policy statement, its ‘para-

mount’ and controlling concern is with domicile as defined

by the courts of Maryland.” Jd. at 658-659, 98 S. Ct. at

1345.

Subsequent to this Supreme Court decision, the Board of

Regents of the University adopted its “clarifying” resolu-

tion. This resolution advanced the interest of cost-

equalization as a factor in the in-state policy. Further, the

resolution reaffirmed the existing policy, irrespective of

whether or not it was ultimately found to conform with the

Maryland law of domicile. This position clearly altered the

posture upon which the first Supreme Court decision was

premised.

Turning now to the Supreme Court decision, Toll v.

Moreno, 441 U.S. 458, 99 S. Ct. 2044, 60 L. Ed. 2d 354

(1979), we find the court saying:

“. ,. the Board of Regent’s Clarifying Resolution

has fundamentally altered the posture of the case.

[The] decision in Elkins rests on the premise that ‘the

University apparently has no interest in continuing

to deny in-state status to G-4 aliens as a class if they

can become Maryland domiciliaries since it has

indicated both here and in the District Court that it

would redraft its policy “to accommodate” G-4 aliens

23a

were the Maryland courts to hold that G-4 aliens can

acquire such domicile. [435 U.S. at 661]. After the

Clarifying Resolution, this premise no longer appears

to be true. And if domicile is not the ‘paramount’

licy consideration of the University, this case is no

onger ‘squarely within Viandis as limited by Salfi

... Ud., at 660, 98 S. Ct. 1338.)” 99 S. Ct. at

2045-2046.

Read in context, this decision does not “remove the

irrebuttable presumption issue from the case entirely.”

(Defendant’s Memo at 11). Rather, the Supreme Court

ruling holds that, since the University has indicated it no

longer plans to re-draft the in-state policy in response to

the decision of the Maryland Court of Appeals to the effect

that G-4 aliens can acquire Maryland domicile, it is no

longer apparent that domicile is the paramount considera-

tion of this case. Jf domicile is not the paramount

consideration, then this case is no longer governed by

Vilandis as limited by Salfi. The Supreme Court did not

conclusively rule on this point; rather it is one of the

issues remanded to this court for determination.

2. Is Domicile Now the “Paramount” Policy Considera-

tion?

The next question which must be addressed is that of

whether or not domicile is the paramount policy considera-

tion in this case. Counsel for both raiiies have filed

detailed memoranda citing instances in the lengthy his-

tory of this case in which the defendants, through counsel,

discussed the basis of the in-state policy. Plaintiffs’ counsel

lists various occasions upon which the defendants main-

tained that domicile was the central issue; defendants’

counsel has countered with references to instances in

which cost equalization justifications were raised and

discussed. This matter cannot be resolved, however, by a

comparison of out of context references to statements by

the defendants, but rather must be examined in light of

the actual policy statement, the clarifying resolution, and

the overall case history.

24a

The plain wording of the in-state policy provides that

the University will grant in-state status to “United States

citizens, and to immigrant aliens . . .” who have been

“domiciled” in Maryland, for six months, or, in the case of

a dependent student, whose parent or spouse has been

domiciled in the state for six months. Thus, as noted by

Mr. Justice Rehnquist in his dissent in Elkins,"’ and as

now advanced by the defendants, the initial hurdle in an

in-state status determination is a showing of United

States citizenship or immigrant alien status. Absent

citizenship or immigrant status, the University does not

even reach the question of domicile. The dissent, and now

the defendants, contend that what this policy does is to

classify nonimmigrant aliens as out of state students for a

variety of reasons, one of which is the University’s belief

that these nonimmigrant aliens lack the capacity to

become Maryland domiciliaries. Other reasons would

include the rationale of cost equalization. Thus the dissent

concludes that there is no irrebuttable presumption based

on domicile since the initial determination of eligibility for

in-state status hinges on a showing of citizenship or

immigrant. status, and the plaintiffs may present any

relevant evidence on that point.

Despite the logical appeal of this argument, it is

apparent that the overall goal of the University’s In-State

Policy is to grant admission, tuition, and charge differen-

tial benefits to Maryland domiciliaries. The present policy

precludes nonimmigrant aliens from consideration for

these benefits. The question that must initially be addres-

sed, according to the remand from the Supreme Court in

Toll, is whether the domicile issue is the “paramount”

concern of the University in this case in order to

determine whether this policy establishes an irrebuttable

presumption precluded by Viandis as limited by Saifi.

Despite the defendants’ present assertion to the con-

trary, it is apparent that up until the time of certification

ae Elkins v. Moreno, supra, 435 U.S. at 669-676, 98 S. Ct.

25a

of the domicile issue to the Maryland Court of Appeals, the

position of the defendants had been that domicile was the

chief issue. This posture was noted by the Supreme Court

in Elkins in stating that the University “makes domicile

the ‘paramount’ policy consideration.” On certification to

the Court of Appeals, however, the defendants shifted

their position. The clarifying resolution plainly states that

the University will not change its policy even given an

adverse decision on the Maryland law of domicile. Thus,

domicile cannot now really be the paramount issue, since

the University has now unquestionably stated that it

doesn’t feel that it is bound by rulings of the Maryland

Court on the law of domicile, but rather is free to define

domicile in a more restrictive manner if it so chooses. The

defendants’ position is that domicile, as defined by the

applicable Maryland law, is not now the real concern of

the in-state policy.

Both parties have devoted considerable attention in

their memoranda to the question of whether or not cost

equalization has been advanced by the defendants as a

consideration in the University’s policy. This is not the

precise point which needs to be addressed according to the

mandate inherent in the Supreme Court’s remand. The

question now put before me is whether or not the law of

domicile, as the term was previously presumed to be

defined by the Maryland law of domicile, is the paramount

consideration in the University’s policy. The clarifying

resolution of the University indicates that this is not the

position presently taken by the University, in that it now

claims the right to construe domicile more narrowly in

order to suit its purposes, one of which is cost equalization.

[2] Clearly the University is not bound to use the

concept of domicile, as defined by state law, in fashioning

its tuition policy. The University, through the Board of

Regents, is granted broad general powers by the State to

administer and manage the operation of the school in such

areas as admission, tuition, and fee policies. Md. Ed. Code

Ann. §13-104. While this court does not question the

University’s authority to act in this fashion, I must

26a

address the effect of its having done so at this late stage in

the litigation.

Although the resolution in question is entitled a “clar-

ifying” resolution, it does not clarify but rather alters the

University’s position on domicile.'* Under the resolution

the University is no longer concerned with the Maryland

law of domicile, but rather with its own more limited use

of that term.

3. What retroactive effect, if any, should be given the

policy change?

[3] The initial policy in question was adopted in

September, 1973. The ruling by this court was filed on

July 13, 1976, granting injunctive relief to the plaintiffs.

That order was stayed, however, pending final outcome on

appeal on condition that, should the plaintiffs ultimately

prevail, the University would refund to them the differ-

ence between in-state and out-of-state charges paid."

The defendants maintain that the plaintiffs’ rights have

not been adversely affected by the University’s change in

position and that giving the “clarifying” resolution re-

troactive effect will not impair the plaintiffs’ rights.

Defendants base this contention on their perception that

the order staying this court’s initial injunction order made

the plaintiffs’ eventual right to any monetary recovery

contingent upon a final decision in their favor. Since no

final ruling has been entered for the plaintiffs, the

defendants claim the plaintiffs have no right to any

compensation and will not be prejudiced if the University’s

regulation is given retroactive effect.

“In Elkins v. Moreno, supra, at 659, n.8, 98 S. Ct. 1338, the

Supreme Court sets out instances in the history of this case up

to that point in which the defendants indicated that the basis of

the policy was the law of domicile as established and applied by

the Maryland courts.

" This would still be contingent upon a showing by the

individual plaintiff that he or she was, in fact, a domiciliary of

Maryland.

27a

The court is not persuaded by the defendants’ argument

on this point. Until June 23, 1978, the date of the

“clarifying” resolution, the purported concern of the

University was with the Maryland law of domicile. Given

this premise, the Supreme Court found this case to be

squarely within Viandis as limited by Salfi. Elkins v.

Moreno, supra, at 660, 98 S. Ct. 1338. Two matters

remained for the Supreme Covurt’s decision at that time:

1. Whether, as found by this court, G-4 aliens could be

domiciled in Maryland according to state law; and, if this

were possible,

2. Whether the court would furiher limit or overrule

Vlandis on the facts of this case.

On certification the Maryland Court of Appeals held

that G-4 aliens could acquire domicile in Maryland under

the applicable state law. Given the interim change in the

defendants’ position in this case, however, the Supreme

Court did not address the question of overruling or further

limiting Vlandis. Until the June 1978 policy change,

in-state eligibility hinged upon a determination of Mary-

land domicile according to state law principles. The Court

of Appeals of Maryland having now determined that G-4

aliens may be domiciled in Maryland according to state

law, the plaintiffs were entitled to the benefits of in-state

status prior to June 23, 1978, upon a showing that they

were, in fact, Maryland domiciliaries, as that term is

generally defined by the laws of the state. The rights of

the plaintiffs were asserted and matured under the pre

June, 1978 policy. Accepting, as this court must do, that

the doctrine of Vlandis v. Kline, supra, has not been yet

discarded by the Supreme Court, the plaintiffs were denied

due process. A change in that policy cannot now retroac-

tively deny plaintiffs the benefits to which they were

entitled and which had accrued up to that time. Greene v.

United States, 376 U.S. 149, 84 S. Ct. 615, 11 L. Ed. 2d 576

(1964); Coe v. Secretary of H.E.W., 502 F.2d 1337 (4th Cir.

1974).

>

28a

4. Is the post June 23, 1978 policy invalid under the

Vlandis v. Kline doctrine?

[4] The question which remains is whether the policy,

which now purports to be concerned with the University’s

narrowly construed definition of domicile, still constitutes

an impermissible irrebuttable presumption.

In Viandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L.

Ed. 2d 63 (1973), the Court held that a Connecticut

statutory definition of “residents” for purpose of fixing

tuition at a state university was unconstitutional where

the state purported to be concerned with residency yet

denied students the opportunity to present facts tending to

show they met the test of residency.

In the present posture of this case, the test asserted in

the revised In-State Policy is the University’s limited

definition of domicile, not the generally accepted Mary-

land law of domicile. The University’s definition of the

term precludes nonimmigrant aliens from “domiciliary”

status. In its present posture, the In-State Policy does # »t

constitute an impermissible irrebuttable presumption.

Given the University’s definition of domicile, which by its

terms excludes nonimmigrant aliens, it is universally true

that G-4 aliens cannot qualify for in-state status under

that policy. Accordingly, there no longer is an impermissi-

ble irrebuttable presumption under the post June 23, 1978

policy.

B. Other Issues

The question still remains whether the revised policy

violates the Equal Protection and Supremacy Clauses of

the Constitution. A conference will be held with counsel to

schedule further proceedings on these points.

29a

United States District Court,

D. Maryland.

Juan Carlos Moreno et al., Plaintiffs,

v.

John S. Toll. President,

University of Maryland, Defendant.

(489 F. Supp. 658 (D. Md. 1980))

Civ. A. No. M-75-691.

MEMORANDUM AND ORDER

(Filed April 17, 1980)

JAMES R. MILLER Jr., District Judge.

This action was filed as a class action challenge’ to the

University of Maryland’s “In-State Policy”? which pre-

cludes non-immigrant aliens from consideration for in-

state status while enrolled at the University. The court

has already addressed the plaintiffs’ due process challenge

_' The plaintiff class was 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 Maryland because of the

challenged policies but would now be interested in attend-

ing 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(a)(15)(G)(iv) or are financially dependent upon a

person holding or named within such a visa.”

Moreno v. University of Maryland, 420 F. Supp. 541, 564 (D. Md.

1976).

* The University of Maryland’s In-State Policy makes Mary-

land domicile the test for granting in-state status to citizens and

immigrant aliens. The Policy, along with the Board of Regents’

“Clarifying Resolution” of June 23, 1978 expressly precludes

consideration of eligibility for in-state status in the case of

non-immigrant aliens enrolled at the University.

30a

to the policy.’ Presently pending before the court are cross

motions for summary judgment on the remaining issues

raised under the Equal Protection Clause of the Four-

teenth Amendment and the Supremacy Clause of the

Constitution.

I. The Equal Protection Claims

[1] The plaintiffs’ initial argument under the Equal

Protection Clause is that the challenged portion of the

University’s In-State Policy is premised upon a classifica-

tion based on alienage, and therefore is subject to strict

scrutiny in accordance with the Supreme Court decisions

in Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29

L. Ed. 2d 534 (1971), Sugarman v. Dougall, 413 U.S. 634,

93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973), Examining Board

v. Flores de Otero, 426 U.S. 572, 96 S. Ct. 2264, 49 L. Ed.

2d 65 (1976), and Nyquist v. Mauclet, 432 U.S. 1, 97S. Ct.

2120, 53 L. Ed. 2d 63 (1977). The defendant, however,

contends that strict scrutiny is inappropriate on the

following bases:

(1) The previous Supreme Court cases concerning

discrimination against aliens in which a strict scru-

tiny test was applied all involved a statute or practice

which allegedly discriminated against resident aliens

(a term equated by the defendant with immigrant

alien);

* See the district court decision in Moreno v. University of

Maryland, 420 F. Supp. 541 (D. Md. 1976), aff'd 556 F.2d 573

(4th Cir.), cert. granted, 434 U.S. 888, 98 S. Ct. 260, 54 L. Ed. 2d

173 (1977). The Supreme Court, after hearing argument on the

case, certified a question of state law to the Maryland Court of

Appeals, prior to entering a final order in the case. Elkins v.

Moreno, 435 U.S. 647, 98 S. Ct. 1338, 55 L. Ed. 2d 614 (1978).

Subsequent to the decision by the Maryland Court of Appeals

(Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979)) the

Supreme Court remanded the matter to the district court for

further consideration due to material changes in the factual

posture of the case. Toll v. Moreno, 441 U.S. 458, 99 S. Ct. 2044,

60 L. Ed. 2d 354 (1979). On remand, the district court issued an

opinion ruling on the remaining due process issues and setting

forth the issues remaining for consideration. Moreno v. Toll, 480

F. Supp. 1116 (D. Md. 1979).

3la

(2) since immigrant aliens are eligible for in-state

status at the University, it is irrational to contend

that the University’s policy denies benefits on the

basis of alienage;

(3) the rationale for according “suspect” class status

is wanting in this case since nonimmigrants can

decide to adjust to immigrant visa status;

(4) in-state consideration is not a necessity of life

and, therefore, strict scrutiny is inappropriate;

(5) strict scrutiny should not be applicable since the

University’s policy is consistent with the purposes of

federal immigration law; and

(6) in the dissent filed in a prior opinion of the

Supreme Court in this case, Justice Rehnquist and

Chief Justice Burger indicated that “[t]here ...

would not appear to be any issue of suspect class and

the University’s in-state tuition policy need only be

shown to be rationally related to a legitimate state

interest.” Elkins v. Moreno, 435 U.S. 647, 676.n.6 [98

S. Ct. 1338, 1354 n.6., 55 L. Ed. 2d 1338] (1978).

In determining the applicable standard in the present

case, it is necessary to review briefly the recent Supreme

Court decisions regarding the ability of the State to create

legislative classifications on the basis of alienage.

Initially, it is clear that “classifications based on

alienage, like those based on nationality or race, are

inherently suspect and subject to close judicial scrutiny.”

Graham v. Richardson, supra, 403 U.S. at 372, 91 S. Ct. at

1852. Thus, in the Graham case, the Supreme Court

struck down Pennsylvania and Arizona statutes which

denied welfare benefits to resident aliens or to aliens who

had not resided in the Univted States for a requisite

number of years, as being violative of the Equal Protection

Clause. In subsequent cases the Court has expounded upon

this doctrine.

For example, in Examining Board v. Flores de Otero,

supra, Puerto Rico's virtual ban on the private practice of

32a

civil engineering by aliens was held unconstitutional by

the Court, stating 426 U.S. at 602, 96 S. Ct. at 2281:

“(Graham v. Richardson, supra; Sugarman uv.

Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d

853 (1973); and In re Griffiths, 413 U.S. 717, 93 S. Ct.

2851, 37 L. Ed. 2d 910 (1973)] establish that state

classifications based on alienage are subject to ‘strict

judicial scrutiny.’ Graham v. Richardson, 403 U.S. at

376, 91 S. Ct. at 1854. Statutes containing classifica-

tions of this kind will be upheld only if the State or

‘erritory imposing them is able to satisfy the burden

of deniwnstrating ‘that its purpose or interest is both

constitutionally permissible and substantial; and that

its use of the classification is “necessary . . . to the

accomplishment” of its purpose or the safeguarding of

its interest.’ In re Griffiths, 413 U.S. at 721-722, 93 S.

Ct. at 2854-2855 (footnotes omitted).”

The Court went on to note that two rationales exist for the

principles set forth in these cases.

“The first, based squarely on the concepts embodied

in the Equal Protection Clause of the Fourteenth

Amendment and in the Due Process Clause of the

Fifth Amendment, recognizes that ‘[aJliens as a class

are a prime example of a “discrete and insular”

minority. ... for whom .. . heightened judicial

solicitude is appropriate.’ Graham v. Richardson, 403

U.S. at 372, 91 S. Ct. at 1852 ... The second,

grounded in the Supremacy Clause, Const., Art. VI,

cl. 2, and in the naturalization power. Art. 1, § 8, cl. 4

recognizes the Federal Government’s primary respon-

sibility in the field of immigration and naturaliza-

tion.” (Citations omitted.)

426 U.S. at 602, 96 S. Ct. at 2281.

Similarly, in Nyquist v. Mauclet, 432 U.S. 1, 97 S. Ct.

2120, 53 L. Ed. 2d 63 (1977), the Supreme Court held

unconstitutional a New York statute which barred certain

resident aliens from eligibility for state financial assist-

33a

ance for higher education.‘ The appellants in Nyquist

sought to avoid strict scrutiny analysis by the Court by

arguing that the state statute in question distingushed

“only within the heterogeneous class of aliens and [did]

not distinguish between citizens and aliens vel non.“ Id. at

8, 97 S. Ct. at 2125. Nevertheless, the Court applied strict

scrutiny analysis in striking down the statute, as it stated:

“The important points are that [the statute] is

directed at aliens and tha: only aliens are harmed by

it. The fact that the statute is not an absolute bar

does not mean that it does not discriminate against

the class.”

Id. at 9, 97 S. Ct. at 2125.

As previously mentioned, the defendant’s initial and

principal argument against the application of the doctrine

of strict scrutiny here is premised upon the observation

that all prior Supreme Court cases cited have dealt with

classifications of “resident” aliens, rather than with

“non-immigrant” aliens. Accordingly, the defendant

argues that nothing in the prior Supreme Court cases

requires the application of strict scrutiny in the examina-

tion of state discrimination against nonimmigrant aliens.

In support of this contention, the defendant refers the

court to G. Rosberg, The Protection of Aliens from

Discriminatory Treatment by the National Government,

Sup. Ct. Rev. 275, 312 (1977), wherein the author states:

“The Supreme Court . . . has not held it unconstitu-

tional to discriminate against nonimmigrant aliens.

‘ The statute in question in Nyquist v. Mauclet, supra,

provided as follows:

“Citizenship. An applicant (a) must be a citizen of the

United States, or (b) must have made application to become

a citizen, or (c) if not qualified for citizenship, must submit

a statement affirming intent to apply for United States

citizenship as soon as he has the qualifications, and must

apply as soon as eligible for citizenship, or (d) must be an

individual of a class of refugees paroled by the attorney

general of the United States under his parole authority

pertaining to the admission of aliens to the United States.”

N.Y. Educ. Law § 661(3) (McKinney Supp. 1976).

34a

It has not even suggested that such aliens are within

the class protected under the suspect classification

doctrine.”

Since no case law is cited in support of the defendant’s

position,’ the issue of whether state classifications which

narrowly discriminate against nonimmigrant aliens

should be examined under strict scrutiny analysis appears

to present a novel question of law.

In attempting to distinguish the present case from prior

Supreme Court decisions which applied strict scrutiny

analysis to classifications of “resident” aliens, See Graham

v. Richardson, supra; Sugarman v. Dougall supra; In re

Griffiths, supra; Nyquist v. Mauclet, supra, the defendant

appears to adopt a definition of “resident” alien which

excludes a nonimmigrant status from its umbrella. This

definition, in turn, appears to have its genesis in the

article by Professor Rosberg:

“As defined in the federal immigration laws, a

resident- or immigrant-alien is a person admitted for

permanent residence, entitled to work and live any-

where in the country and eligible for naturalization

after five years of residence. A non-resident- or

*’ The court and the parties have found no case which

addresses this issue. The defendant, however, does refer this

court to the cases of Shames v. State of Nebraska, 323 F. Supp.

1321 (D. Neb. 1971), aff'd 408 U.S. 901, 92 S. Ct. 2478, 33 L. Ed.

2d 321 (1972); DeTenorio v. Lightsey, 589 F.2d 911 (5th Cir.

1979), cert. den. ___ U.S. —__.,, 100 S.. Ct. 59, 62 L. Ed. 2d 39

(1979); and Hernandez v. Houston Independent School District,

558 S.W.2d 121 (Tex. Civ. App. 1977) in support of his position.

These cases, however, are unpersuasive on this particular issue,

in that beth Shames and DeTenorio concern state statutes

limiting the rights of nonresident aliens, i.e. those living in

foreign countries, to inherit property in the United States, and

. Hernandez deals with a Texas statute denying free education to

illegal aliens. The defendant also cites Mathews v. Diaz, 426

U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976), but that case

specifically deals with the rights of Congress to create legisla-

tive classifications based on alienage. Mathews, therefore, does

not address the issue of the state’s power to discriminate on the

basis of alienage.

35a

nonimmigrant-alien is a person admitted for a fixed

period of time determined prior to entry ... No

amount of residence will make a nonimmigrant

eligible for naturalization.”

G. Rosberg, The Protection of Aliens from Discrimina-

tory Treatment by the National Government, supra at 277.

Under Professor Rosberg’s analysis, the terms “immig-

rant” and “resident” are synonymous, as are the terms

“nonimmigrant” and “nonresident”. This court, however,

has concluded that this definition of these terms is

erroneous, both in light of the definitions contained in the

Immigration and Nationality Act itself and of usage of the

terms in relevant case law.

The Immigration and Nationality Act defines the term

“residence” as follows:

“The term ‘residence’ means the place of general

abode; the place of general abode of a person means

his principal, actual dwelling place in fact, without

regard to intent. Residence shall be considered con-

tinuous for the purposes of sections 1482 and 1484 of

this title’ where there is continuity of stay but not

necessarily an uninterrupted physical presence in a

foreign state or states or outside the United States.”

8 U.S.C. § 1101(a)(33).

Under this definition a “resident” alien is one whose

place of general abode is within the United States.

Resident aliens can, therefore, be further ciassified as

either “immigrant” or “nonimmigrant”, the chief basis for

the distinction between the two being the statutory

recognition of temporal limits inherent in nonimmigrant

status. Immigrant aliens are referred to as being “lawfully

admitted for permanent residence”, i.e. being “accorded

* 8 U.S.C. § 1482 deals with the circumstances under which

dual nationals will lose their United States citizenship due to

continued residence in a foreign state of birth.

8 U.S.C. § 1484 deals with the circumstances under which a

naturalized national may lose his United States citizenship due

to continuous residence in a foreign state.

36a

the privilege of residing permanently in the United

States.” 8 U.S.C. § 1101(a)(20). Nonimmigrant aliens, by

contrast, are admitted for temporary residence.’ Nonim-

migrant aliens are ineligible to become naturalized

citizens, because they are not admitted for permanent

residence in accordance with the statutory requirements.

See 8 U.S.C. § 1427(a). Nonimmigrant aliens may, howev-

er, be classified as resident aliens if their principal

dwelling place is within the United States.* Thus the court

’ Nonimmigrant aliens do not constitute a homogeneous class.

The statute lists 12 separate categories of aliens who qualify for

classification as nonimmigrants. See 8 U.S.C. § 1101(a)(15)(A)-

(L). Each category accords special immigration treatment to a

classification of aliens in recognition of their specialized purpose

or function in coming to the United States. Nonimmigrant

aliens are exempted from the numerical limitations which are

placed upon the entry of immigrant aliens. Accordingly, aliens

seeking admission are deemed to be immigrants unless they can

prove that they fall within one of the statutorily defined

nonimmigrant classifications. 8 U.S.C. § 1184(b).

* This proposition is supported by negative inferences derived

from Supreme Court cases which have discussed the rights of

nonresident aliens. Although the term “nonresident alien” is not

specifically defined by statute, the Supreme Court has repeated-

ly used the term in reference to aliens living outside the United

States. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct.

2576, 33 L. Ed. 2d 683 (1972); Gorun v. Fall, 393 U.S. 398, 89 S.

Ct. 678, 21 L. Ed. 2d 628 (1969); Zschernig v. Miller, 389 U.S.

429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968); Incres Steamship Co.,

Ltd. v. International Maritime Workers Union, 372 U.S. 24, 83 8.

Ct. 611, 9 L. Ed. 2d 557 (1963); Kolovrat v. Oregon, 366 U.S. 187,

81 S. Ct. 922, 6 L. Ed. 2d 218 (1961); Mackey v. Mendoza-

Martinez, 362 U.S. 384, 80 S. Ct. 785, 4 L. Ed. 2d 812 (1960); Jay

v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956);

Kwong Hai Chew v. Colding, 344 U.S. 590, 73 8. Ct. 472, 97 L.

Ed. 576 (1953); Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct.

936, 94 L. Ed. 1255 (1950); Commissioner v. Wodehouse, 337

U.S. 369, 69 S. Ct. 1120, 93 L. Ed. 1419 (1949); Clark v. Allen,

331 U.S. 503, 67 S. Ct. 1431, 91 L. Ed. 1633 (1947). These cases

support this court’s conclusion that the terms “resident” and

“nonresident” alien as used by the Supreme Court in the past,

refer solely to the question of whether the alien is present and

dwelling in fact in the United States and not to the alien’s

status as immigrant or nonimmigrant. 8 U.S.C. § 1101(a)(33).

37a

finds that the term “resident alien”, as used in prior

Supreme Court decisions dealing with the state’s power to

classify on the basis of alienage, means those aliens, either

immigrant or nonimmigrant, Whu maintain their place of

general abode within the United States.

Given the above definition of “resident alien”, the

defendant’s position presumably is that the prior Supreme

Court cases mandate that sirict scrutiny analysis be

applied in cases of state classifications which discriminate

broadly against resident aliens, but that the Court has not

yet addressed the question of discriminate classifications

of an identifiable subclass of resident aliens, i.e. nonim-

migrant aliens.

The chief factor which distinguishes nonimmigrant

resident aliens from other resident aliens is that nonim-

migrants are admitted only as “temporary” residents of

the United States. Accordingly, regardless of the duration

of a nonimmigrant’s residence in this country, he is

ineligible for citizenship unless he changes his visa status

to that of an alien admitted for permanent residence, i.e.

an immigrant alien. Nonimmigrant aliens, therefore, have

a lesser degree of national affinity than immigrant aliens

since the former will \ot, as a matter of course, become

eligible for citizenship. This fact, however, is an insuffi-

cient justification for allowing the states greater latitude

to discriminate against nonimmigrant aliens. As was

stated by the Supreme Court in Nyquist v. Mauclet, supra

432 U.S. at 10, 97 S. Ct. at 2126:

“The first purpose offered by the appellants,

directed to what they describe as some ‘degree of

national affinity’. . .° is not a permissible one for a

State. Control over immigration and naturalization is

entrusted exclusively to the Federal Government, and

a State has no power to interfere.”

* As previously set forth in note 4, the statute under

consideration in Nyquist only discriminated against resident

aliens who had not applied for citizenship, or if not qualified for

citizenship, would not submit a statement affirming an intent to

become a citizen when qualified.

38a

The fact that nonimmigrant aliens may not acquire

citizenship in the United States is a fact which is

exclusively controlled by Congress. Therefore, a state has

no power to place additional burdens on nonimmigrants

solely on the basis of their visa status as dictated by

Congress.

The court concludes that the Supreme Court cases cited

have in principle wrapped all resident aliens, both immig-

rant and nonimmigrant, in the suspect classification

blanket. The judicial protection accorded to aliens as a

suspect class was based upon a recognition that aliens

constitute a “discrete and insular minority” for whom

“heightened judicial solicitude is appropriate”. See, Gra-

ham v. Richardson, supra 403 U.S. at 372, 91 S. Ct. at

1852. This treatment is seemingly premised on the aliens’

minority status in the community, not their potential

citizen status. Accordingly, the court believes that existing

case law demands that states justify discriminate classi-

‘ fications of resident aliens, whether immigrant or nonim-

migrant, under a strict scrutiny standard."

[2] The defendant has presented the court with several

additional alternate arguments against the application of

strict scrutiny analysis in this case. First, the defendant

stresses that the In-State Policy does not discriminate

against all aliens,’ in that it only precludes consideration

for in-state status to all nonimmigrant aliens. This fact,

however, is unimportant, for as the Court stated in

Nyquist, the relevant facts in determining that strict

scrutiny should apply are that the policy is directed at

aliens, albeit only the subclass of nonimmigrant aliens in

" The one exception to this principle is the “governmental

functions” doctrine which will be discussed infra in connection

with the Supreme Court decision in Foley v. Connelie, 435 U.S.

291, 98 S. Ct. 1067, 55 L. Ed. 2d 287 (1978).

" The mere fact that some aliens do obtain In-State status

consideration under the policy does not imply that the policy

should not still be subject to strict scrutiny. As Nyquist

indicated, the test is whether the policy impermissibly discri-

minates against aliens, not necessarily whether it discriminates

against all aliens.

39a

the present case, and that only aliens are harmed by the

policy. The subciass of nonimmigrant aliens seemingly

constitutes a “discrete and insular minority for whom

judicial solicitude is appropriate,” Graham v. Richardson,

supra at 372, 91 S. Ct. at 1852, since their nonimmigrant

status is dictated by federal law. Cf. 8 U.S.C.

§ 1101(a)(15)."”

The defendant also argues that the University’s policy

harms not only aliens but that it also denies in-state

preference to out-of-state students. (See Paper 42, p. 4).

This argument, however, is unpersuasive since the policy

subjects all citizens and immigrart aliens to a domicile

test in order to qualify for in-state benefits whereas

nonimmigrant aliens are precluded from qualifying under

the same test. The fact that one of the effects of the statute

is to deny in-state status to out-of-state students is

immaterial in determining whether the policy denies

equal protection to nonimmigrant aliens who reside within

the state. The policy is naturally based on the premise

that in-state status should only be granted to persons who

reside within the state. The question, therefore, is whether

the policy denies equal protection to nonimmigrants as a

“discreet and insular” minority of state residents. It

appears to do so.

[3] The defendant also seeks to avoid strict scrutiny

analysis by claiming that the benefit sought is not a

“necessity of life.” The defendant cites the recent Supreme

Court opinion in Foley v. Connelie, 435 U.S. 291, 98 S. Ct.

1067, 55 L. Ed. 2d 287 (1978). In this context, however, the

" The fact that a nonimmigrant alien may opt to adjust his

immigration status to that of a permanent alien does not redeem

the University’s Policy. In Nyquist, the statute challenged

provided that aliens would be eligible for the educational loans

in question if they either applied to become United States

citizens or submitted a statement of intent to apply for

citizenship when eligible. The Nyquist court struck down the

statute, despite the fact that those challenging the statute could

have qualified for the loans they sought merely by deciding to

apply for citizenship. Nyquist v. Mauclet, supra, 432 U.S. at 11,

97S. Ct. at 2126.

40a

defendant’s reliance on Foley is misplaced. In Foley, the

Court upheld a New York statute limiting appointment to

the state police force to United States citizens by applying

a rational basis, rather than a strict scrutiny, test. The

application of this less demanding standard, however, was

clearly limited to alienage classifications in matters

involving the state’s “historical power to exclude aliens

from participation in its democratic political institutions.”

Id. at 295, 98 8. Ct. at 1070. As the Court stated:

“The essence of our holdings to date is that

although we extend to aliens the right to education

and public welfare, along with the ability to earn a

livelihood and engage in licensed professions, the

right to govern is reserved to citizens.”

Id. at 297, 98 S. Ct. at 1071. The defendant would have the

court construe this statement to mean that strict scrutiny

should only apply to the “necessities of life”, such as those

indicated. Taken in context, however, it is apparent that

the case stands for a limited exception to the general strict

scrutiny standard, and that the exception will apply only

im cases involving state regulation of one of the basic

functions of government. This meaning is apparent in

light of the Court’s later decision in Ambach v. Norwick,

441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979), where

it stated:

“The rule for governmental functions, which is an

exception to the general standard applicable to classi-

fications based on alienage, rests on important princi-

ples inherent in the Constitution. The distinction

between citizens and aliens, though ordinarily

irrelevant to private activity, is fundamental to the

definition and government of a State.”

Id. at 75, 99 S. Ct. at 1593. Thus the strict scrutiny

approach is generally applicable to State classifications

based on alienage, excepting those dealing with gov-

ernmental functions in which cases the less stringent

rational basis test will be applied.

4la

Given the above considerations, the Court finds that

strict scrutiny is the applicable test in examining the

constitutionality of the University’s In-State Policy."

Accordingly, the statute may be upheld only if the

defendant satisfies the burden of demonstrating that:

“[the policy’s] purpose of interest is both constitu-

tionally permissible and substantial, and that [the

State’s] use ‘of the classification is necessary to the

accomplishment of its purpose or the safeguarding of

its interest.”

Examining Board v. Flores de Otero, supra, 426 U.S. at

602, 96 S. Ct. at 2281 (citing In re Griffiths, supra 413 U.S.

at 721-722, 93 S. Ct. at 2854-2855).

[4] The defendant’s Memorandum in support of his

Motion for Summary Judgment (Paper 36) discusses the

interests served by the In-State Policy in terms of a

rational basis standard, rather than a strict scrutiny

standard." The purposes purportedly served by the Policy

have been set forth by the defendant as follows:

(1) limiting the University’s expenditures by grant-

ing a higher subsidy toward the expenses of providing

educational services to that class of persons who, as a

class, are more likely to have a close affinity to the

State and to contribute more to its economic well-

being;

(2) achieving equalization, between the affected clas-

ses, of the expenses of providing educational services;

(3) efficiently administering the University’s in-state

determination and appeals process; and

'’ The defendant's argument that Justice Rehnquist and Chief

Justice Burger have already indicated that Nyquist is not

controlling in the present case is unpersuasive, as this state-

ment was merely dicta in a dissenting opinion. Further, the

court notes that both Justices filed dissents in Nyquist.

“ The plaintiffs have noted that the defendant conceded in his

brief to the Court of Appeals for the Fourth Circuit that the

University’s policy “will not withstand a ‘strict scrutiny’ Equal

Protection standard.” (Br. at 32).

42a

(4) preventing disparate treatment among categories

of nonimmigrants with respect to admissions, tuition,

and charge-differentials.

Although these factors would arguably constitute a suffi-

cient justification for the University’s policy under a

rational basis analysis, they fail to meet the high burden

which the defendant faces under a strict scrutiny stan-

dard.

Citizens and immigrant aliens do not necessarily have a

“closer affinity” to the State than do nonimmigrant aliens.

This is particularly apparent in the context of this case,

since it has already been determined that, as a matter of

both federal and state law, G-4 nonimmigrant aliens are

capable of acquiring domicile in the state of Maryland. In

addition, the state affinity rationalization was specifically

considered and rejected by the Supreme Court in Nyquist

v. Mauclet, supra.

Similarly, cost equalization is an insufficient justifica-

tion for the University’s policy. As this court has previous-

ly noted:

“Nonimmigrant aliens, even those such as plain-

tiffs’ 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 Uni-

versity of Maryland through payment of real proper-

ty, 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.’”

Moreno v. University of Maryland, 420 F. Supp. at 560."

Cost equalization is the most persuasive rationale set forth

by the defendant in support of the Policy. As summarized by the

defendant, the contention is as follows:

“The University’s requirement that nonresidents and

nonimmigrants pay out-of-state rates bears a rational

43a

The rationalization that the preclusion of nonimmig-

rants promotes the efficient administration of the Uni-

versity’s policy is patently insufficient under a strict

scrutiny analysis. Cf. Memorial Hospital v. Maricopa

County, 415 U.S. 250, 267, 94 S. Ct. 1076, 1086, 39 L. Ed.

2d 306 (1974). It is apparent that the University already

has an administrative procedure through which eligibility

for in-state status may be determined on a case-by-case

basis when necessary. Thus any questions of in-state

eligibility for nonimmigrants could easily be processed

through the University’s existing administrative proce-

dures. The fact that this would result in an increased cost

to the University is an insufficient justification for the

Policy. Sugarman v. Dougall, supra 413 U.S. at 646, 93 S.

Ct. at 2849.

Finally, the University’s rationalization that the present

policy prevents disparate treatment among categories of

nonimmigrant aliens is not persuasive. If that portion of

the University’s policy which limits consideration for

in-state eligibility to citizens and immigrant aliens were

stricken, then nonimmigrant aliens would be uniformly

eligible for consideration for in-state status under the

terms of the policy applicable to citizens and aliens alike.

The fact that certain categories of nonimmigrants would,

relationship to the State’s purpose of financing, operating,

and maintaining the University of Maryland. 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 employment, tax payments, and. expendi-

tures, viz., nonimmigrants and other nonresidents.” (Paper

36, p. 16-17).

As the defendant’s argument implies, however, and as was

previously conceded in the defendant's Brief to the Fourth

Circuit Court of Appeals, although this argument would be

sufficient under a rational basis analysis, it is insufficient under

a strict scrutiny standard. Under a strict scrutiny test it is

‘incumbent upon the State to show that its interest is constitu-

tionally permissible and substantial and that the questioned

classification is necessary to the fulfillment of that interest. See,

Examining Board v. Flores de Otero, supra.

44a

as a matter of law, prove to be ineligible for in-state

treatment is an insufficient basis for precluding considera-

tion of those whe could otherwise qualify under the terms

c’ the policy.

For the foregoing reasons, the Court finds that the

University of Maryland’s In-State Policy violates the

Equal Protection Clause of the Fourteenth Amendment to

the extent that it denies nonimmigrant aliens considera-

tion for eligibility for in-state status.

Il. The Supremacy Clause Claims

The plaintiffs contend that the University’s In-State

Policy violates the Supremacy Clause on two grounds.

First, the plaintiffs claim that the Policy conflicts with

international agreements entered into by the United

States. Second, the plaintiffs argue that the Policy con-

flicts with the exclusive authority of Congress over

immigration.

A. Interference With International Agreements

[5] The substance of the plaintiffs’ contention on this

ground is that the University’s Policy conflicts with the

international agreements entered into by the United

States which establish the international organizations

employing the plaintiffs’ fathers in this country. Specifi-

cally, the plaintiffs contend that the Policy interferes with

the provisions in the international agreements which

preclude both Federal and State taxation of the salaries

paid to non-American employees of the designated orga-

nizations. The purported conflict with these agreements

stems from the fact that one of the University’s express

justifications for the Policy is to promote cost equalization

for those individuals subject to the full spectrum of

Maryland taxes. Thus, largely because the plaintiffs’

fathers are not subject to the state income tax, they are

not accorded the benefits derived from in-state classifica-

tion.

45a

The defendant maintains that there is no direct conflict

between the University’s Policy and the international

agreements referred to by the plaintiff. The only arguable

conflict which exists is between one of the rationales

advanced in support of tie University’s Policy and the

income tax exemptions granted by the international

agreements. The defendant contends that this is insuffi-

cient evidence of an impermissible conflict under the

Supremacy Clause.

[6] As stated by the Supreme Court in DeCanas v. Bica,

424 U.S. 351, 357 n.5, 96 S. Ct. 933, 937 n.5, 47 L. Ed. 2d

43 (1976), “the Supremacy Clause requires the invalida-

tion of any state legislation that burdens or conflicts in

any manner with any federal laws or treaties.” An indirect

or hypothetical conflict is insufficient, however, to render

invalid a state statute or policy, for the Supreme Court has

stated that the reserved powers of the State “should be

respected unless there is a clear collision with a national

law which has the right of way under the Supremacy

Clause of Article VI.” Kesler v. Dept. of Public Safety, 369

U.S. 153, 172, 82 S. Ct. 807, 818, 7 L. Ed. 2d 641 (1962)

(Emphasis added). Cf., Seagram & Sons v. Hostetter, 384

US. 35, 45, 86 S. Ct. 1254, 1260, 16 L. Ed. 2d 336 (1966);

Huron Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S. Ct.

813, 817, 4 L. Ed. 2d 852 (1960).

In this case it is apparent that there is no “clear conflict”

between the policies in question. The University’s Policy

seeks to confer certain econemic benefits on individuals

closely affiliated with the State of Maryland. The mere |

fact that one of the factors which is considered in

determining eligibility for this benefit is whether or not —

the applicant’s income is taxed by Maryland does not

necessarily imply that the policy conflicts with the tax

policies contained in the relevant international agree-

ments. The “conflict” between these policies, in and of

itselt, is too attenuated to warrant invalidating the

University’s Policy.

46a

B. Interference With Congress’ Exclusive Control Over

Immigration.

[7] The plaintiffs contend that the University’s Policy

violates the Supremacy Clause in that it encroaches upon

the exclusive federal power over immigration and natur-

alization. The defendant, however, maintains that the

Policy falls within the range of discretion afforded to

states in dealing with aliens within their borders.

Initially, as the Supreme Court noted in DeCanas v.

Bica, 424 U.S. 351, 355, 96 S. Ct. 933, 936, 47 L. Ed. 2d 43

(1966): ;

“. . . the Court has never held that every state

enactment which in any way deals with aliens is a

regulation of immigration and thus per se pre-empted

by [the] constitutional power [to regulate immigra-

tion], whether latent or exercised.”

The Court went on to explain that a regulation of

immigration “is essentially a determination of who should

or should not be admitted into the country, and the

conditions under which a legal entrant may remain.” Jd.

Similarly, as the Court stated in Examining Board v.

Flores de Otero, supra 426 U.S. at 604-605, 96 S. Ct. at

2282:

“We do not suggest, however, that a State, Terri-

tory, or local government, or certainly the Federal

governnient, 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. In each case, the governmental

interest claimed to justify the discrimination is to be

carefully examined in order to determine whether that

interest is legitimate and substantial, and inquiry

must be made whether the means adopted to achieve

the goal are necessary and precisely drawn.” (Emph-

asis supplied).

47a

As this section of the Court’s opinion indicates, the

standard utilized to uphold a state regulation dealing with

benefits to be accorded to aliens is essentially the strict

scrutiny analysis previously discussed in reference to the

Equal Protection arguments. Thus, for the reasons pre-

viously set forth, the defendant has failed to meet the high

burden required in order to justify the discriminatory

treatment of nonimmigrant aliens under the University’s

Policy. This court, therefor:, finds the Policy to be

unconstitutional under both the Equal Protection Clause

of the Fourteenth Amendment and the Supremacy Clause

of the Constitution."

III. Conclusion

Accordingly it is ORDERED this 17th day of April, 1980

by the United States District Court for the District of

Maryland, that the plaintiffs’ Motion for Summary Judg-

ment is hereby GRANTED and the defendant’s Motion for

Summary Judgment is hereby DENIED.

’ The court specifically notes that this decision does not

require that domicile, as defined under state law, be the test for

determining eligibility for in-state status at the University of

Maryland. The only matter which the Court has decided is that

the standards which the University utilizes in determining

in-state eligibility must either be uniformly applied to all

citizens and resident aliens, or else any discriminate treatment

of aliens must withstand strict scrutiny analysis, as set forth in

this opinion, in order to be upheld.

48a

In The United States District Court

For The District of Maryland

Civil Action No. M-75-691

Juan Carlos Moreno, et al.

Plaintiffs,

v.

John S. Toll, President

University of Maryland,

Defendant.

ORDER

(Filed May 30, 1980)

For the reasons stated in the Court’s Memorandum

Opinion of October 31, 1979, 480 F. Supp. 1116 (D. Md.

1979), and in the court’s Memorandum Opinion filed on

April 17, 1980, it is this 30th day of May, 1980, hereby

ORDERED, ADJUDGED AND DECREED as follows:

1. That the University of Maryland’s “In-State Policy”,

as enforced prior to June 23, 1978, which denied G-4 aliens

the opportunity to establish “In-State” status through the

use of an irrebuttable presumption of non-domicile, was

unconstitutional as it was in violation of the Due Process

Clause of the Fourteenth Amendment;

2. That the University of Maryland’s “In-State Policy”,

as enforced on, before, and after June 23, 1978, which

denies G-4 aliens the opportunity to establish “In-State”

status, is unconstitutional as it is in violation of the Equal

Protection Clause of The Fourteenth Amendment and the

Supremacy Clause;

49a

3. That the court’s Order of July 13, 1976, 420 F. Supp.

541, 565 (D. Md. 1976), is hereby REAFFIRMED insofar

as it relates to the “In-State Policy” prior to June 23, 1978;

4. The court’s Order of July 13, 1976, 420 F. Supp. 541,

565 (D. Md. 1976), is hereby REAFFIRMED insofar as it

relates to the “In-State Policy”, as applied after June 23,

1978, except for the different grounds for the relief ordered

that are set forth in the Memorandum Opinion of April 17,

1980, and Paragraph 2 of this Order.

5. Defendant John S. Toll is hereby enjoined from

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

as it was in effect prior to June 23, 1978, or as it has been

in effect subsequent to June 23, 1978, 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;

6. As to each member of the class whose status was

determined by a G-4 visa for the Fali semester of 1976 or

for any subsequent semester up to and including the date

of this order, and whose request for reclassification, if filed

prior to the last day available for registration for the Fall

1976 semester (or, for any subsequently registering stu-

dent, the last day available for registration for the first

semester in which such student enrolled), would have been

granted but for the stay order pending appeal granted on

August 3, 1976, defendant John S. Toll shall 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, had been

immediately effective, including interest at the legal rate.

7. For purposes of paragraph numbered 6 of this Order,

the determination of which members of the subclass would

have been granted reclassification to “In-State” status but

for the stay pending appeal shall be based on the following

determination of domicile: Whether, for each term in

which such student was enrolled at the University during

50a

the relevant period, such student (if financially indepen-

dent) or the person or persons upon whom such student

was financially dependent was domiciled in the State of

Maryland according to state law principles, as reflected in

paragraph 3 of the Application Section of the “In-State

Policy”, for six consecutive months prior to the beginning

of that semester;

8. In making the determination of domicile required by

Paragraph 7 of this Order, defendant Toll shall apply the

same standards, and apply them in the same way, as he or

his predecessor did in determining whether a citizen or

permanent resident alien was domiciled in Maryland, and

shall not determine that a person was a nondomiciliary of

Maryland solely on the ground that he or she either held a

G-4 visa or was exempt from state and local income

taxation on a salary or wages from an international

organization by virtue of an international agreement to

which the United States is a party;

9. The court reserves the question of court costs and

attorneys’ fees.

James R. MILLER, JR.,

United States District Judge.

5la

In The United States District Court

For The District Of Maryland

Civil Action No. M-75-691

Juan Carlos Moreno, Juan Pablo Otero, Clare B. Hogg

and

Renee Otero, Jr.

Plaintiffs.

v.

University of Maryland

John S. Toll, President, University of Maryland

JUDGMENT

(Filed May 30, 1980)

In accordance with the Opinion dated July 13, 1976 and

the Memorandum and Order dated April 17, 1980 and

Order dated May 30, 1980 and filed in the above entitled

case, it is

ORDERED and ADJUDGED: THAT JUDGMENT BE

AND THE SAME IS HEREBY ENTERED IN FAVOR OF

PLAINTIFFS AGAINST DEFENDANTS.

Dated at Baltimore, Maryland this 30th day of May,

1980.

Paut R. Scuuirz,

Clerk.

By: Ron Lawson

Deputy CLERK.

52a

In The United States District Court

For The District Of Maryland

Civil Action No. M-75-691

Juan Carlos Moreno, et al.

Plaintiffs

v.

John S. Toll, President,

University of Maryland

Defendant

ORDER

(Filed May 30, 1980)

The Court having read and considered the Motion To

Stay Order Pending Appeal, filed on May 30, 1980, on

behalf of John S. Toll, President, University of Maryland,

the defendant above named;

And the Court having heard argument of counsel for the

respective parties in chambers on May 30, 1980, at which

time it was represented by counsel for the defendant Toll

that were a stay granted the University of Maryland, for

the fall 1980 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

1980 semester (or, for any subsequently registering stu-

dent, the last day available for registration for the first

semester in which such student enrolled), would have been

granted but for the stay, would refund the difference in

tuition and other charges between the “out-of-state”

53a

charges assessed and actually paid and the “in-state”

charges that would have been assessed, in the event the

Court’s order of May 30, 1980, were finally affirmed on

appeal;

And the Court having determined from the foregoing

pleading, arguments, and representation that the prere-

quisites 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 2nd day of June, 1980, by the United States

District Court for the District of Maryland, hereby

ORDERED that the Motion To Stay Order Pending

Appeal be granted as prayed and that the effectiveness of

the Court’s order filed May 30, 1980, be, and the same

hereby is, STAYED.

JaMEs R. Miter, JR.

United States District Judge.

54a

In The United States District Court

For The District Of Maryland

Civil Action No. M-75-691

Juan Carlos Moreno, Juan Pablo Otero, Clare B. Hogg

and

Renee Otero, Jr.

v.

University of Maryland

John S. Toll, President, University of Maryland

AMENDED JUDGMENT

(Filed June 24, 1980)

In accordance with the Opinion dated July 13, 1976 and

Memorandum and Order dated April 17, 1980 and Order

dated May 30, 1980 and filed in the above entitled case, it

1S

ORDERED AND ADJUDGED:

(1) THAT JUDGMENT BE AND THE SAME IS

HEREBY ENTERED IN FAVOR OF DEFENDANT,

UNIVERSITY OF MARYLAND, AGAINST PLAINTIFFS.

(2) THAT JUDGMENT BE AND THE SAME IS

HEREBY ENTERED IN FAVOR OF THE PLAINTIFFS

AGAINST DEFENDANT, JOHN S. TOLL, PRESIDENT,

UNIVERSITY OF MARYLAND.

Dated at Baltimore, Maryland, this 24th day of JUNE,

1980.

Paut R. Scuuirz,

Clerk.

James R. Mitver, Jr.,Jupace,

United States District Court.

55a

OPINION

(Filed July 13, 1976)

United States District Court,

D. Maryland.

Civ. A. No. M-75-691

Juan Carlos Moreno et al.,

Plaintiffs,

v

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].

1 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

56a

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.I.A.S. No. 1502, as amended Dec.

16, a 16 U.S.T. 1942, T.I.A.S. No. 5929 and Art. XI § 9(b)

of the Agreement Establishing the Inter-American Develop-

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

Plaintiff Clare Hogg’s father is employed by the former

crganization usu ied © oo he Gat Bank; the

fathers of the other two named plaintiffs are employed by the

latter ae

57a

“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).

* * * * * *

“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:

58a

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 mouths 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.

, .. Registers all owned motor vehicles in Mary-

and.

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’

ee ArH for Admissions of Fact, with emphasis

a aa

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 b2cause 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 nave an

opportunity to present any and all evidence he may have

ing 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

59a

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

of a G-4 visa; he has been employed by the 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, 4 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.”

60a

(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., 421).

“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.”

6la

(Id., 4 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

62a

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., 4 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

— anywhere other than in the State of Mary-

an gg

(Id., 4 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

63a

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

4 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

ns 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.”

64a

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.”5 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

Ma-vland 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 bas so held. Blue v. Craig,

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

65a

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 U.S.

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

II. 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

66a

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 ‘ts 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 affidavit’ of Dr. Wilson H.

6 Under Rule 56, F.R.Civ.P., the .ncontradicted facts in

this affidavit may be taken as true.

67a

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:

“(a) 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

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

University are _ through checks drawn on the

Treasury of the State of Maryland;

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

University is exempt from Maryland Sales Tax. The

68a

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, including terminations, of

classified employees, are appes!able for determination

by the Secretary of Personnel, State of Maryland;

“(j) 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

rovided through participation in State of Maryland

nsurance Plans;

“(k) The Board of ents of the University consists

fifteen members. e Governor of the State of

yy ae appoints fourteen with the advice and consent

e State Senate. The remaining members are the

+ hee doe Secretary of Agriculture;

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

Comptroller are notified of all meetings of the Board of

ents of the University and have the authority to sit

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

Pp ’

“(m) The University obtains its legal 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 “ be paid, if at all, by the

State of Maryland.” Langsner, p. 9.

69a

for purposes of that section and amenable to suit

thereunder. Burt v. Board 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 v.

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

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

College, supra.

II. 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 U.S.

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-

sies.”

70a

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

v. 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 (19774), 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 standin

question is whether the plaintiff has ‘alleged su

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

Tla

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. 13847, 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, 94 S. 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.”

72a

VI. Absentian

[8] Defendants urge ihe 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.” (Id. 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.” (Id. 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 legislaiwre and the

Railroad Commission.

73a

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 wiil 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.

J4a

MacMullan, 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 ‘n 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 dependent’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);

_ LZwickler 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

75a

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 provisiori 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).

VII. 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,

10 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 U.S.

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

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

oye A State Farm Insurance Co., 375 F.2d 720, 722 (4th

ir. .

76a

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

Reond 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 Viandis, 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 his 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

77a

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

wher» his fitness was challenged.

Similarly, in Cleveland Board of Diidition v.

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

incapable 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

78a

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 financially 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 fects relating to

domicile are irrelevant. The fact that the State will

listen to evidence totally immaterial to its predcter-

mined conclusion concerning the domicile of a G-4 alien

‘1 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.

79a

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 Vlandis, 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,

rime home, habitation and principal estab-

ishment, without any intention of removing

therefrom, and to which place he has, whenever he

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

15 A.2d at 908).

80a

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. Id. 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.”

(Id., 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.” (Jd., 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

8la

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, 133 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. Id.; 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 seq., 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

82a

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

organizations and the members of their immediate

families.”

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(aX15)(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 G-4 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 Pag “we

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

ee of his authorized nonimmigrant

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 as a member of that class of aliens. In terms of

the present case, the period of admission of the

83a

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.” (Jd., 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 into the District of Columbia and other relevant

1 Under 8 U.S.C. §1251(aX9) 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.”

'S The domicile rule in the District o

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