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

Docket Nº:2.
Citation:397 A.2d 1009, 284 Md. 425
Opinion Judge:[10] Eldridge
Party Name:John S. TOLL, President, University of Maryland v. Juan Carlos MORENO et al.
Attorney:[7] David H. Feldman, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Robert A. Zarnoch, Assistant Attorney General, on the brief, for appellant.
Case Date:February 21, 1979
Court:Court of Appeals of Maryland

Page 1009

397 A.2d 1009 (Md. 1979)

284 Md. 425

John S. TOLL, President, University of Maryland


Juan Carlos MORENO et al.

No. 2.

Court of Appeals of Maryland.

February 21, 1979

       [284 Md. 426] David H. Feldman, Asst. Atty. Gen., Baltimore (Francis Bill Burch, Atty. Gen. and Robert A. Zarnoch, Asst. Atty. Gen., Baltimore, on brief), for appellant.

       Alfred L. Scanlan, Bethesda (Shea & Gardner, James R. Bieke, John Townsend Rich and Raymond M. Bernstein, Washington, D.C., on brief), for appellees.

       Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, [*] ELDRIDGE, ORTH and COLE, JJ.

       ELDRIDGE, Judge.

       The Supreme Court of the United States, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), § 12-601 Et seq. of the Courts and Judicial [284 Md. 427] Proceedings Article, requests that we answer the following question of law:

"Are persons residing in Maryland who hold or are named in a visa under 8 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,

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incapable as a matter of state law of becoming domiciliaries of Maryland?" Elkins v. Moreno, 435 U.S. 647, 669, 98 S.Ct. 1338, 1351, 55 L.Ed.2d 614 (1978).

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

       The controversy is over these students' status for tuition purposes of the University of Maryland. Moreno, Otero and Hogg sought "in-state" tuition status at the school. The University has established a general policy statement which [284 Md. 428] sets forth standards for determining under what circumstances "in-state status for admission, tuition and charge-differential purposes" should be granted. It provides:

"General Policy

"1. It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases:

"a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester.

"2. It is the policy of the University of Maryland to attribute out-of-state status for admission, tuition, and charge differential purposes in all other cases.


"1. A student is financially dependent if he receives half or more than half of his support from another person or persons, or appears as a dependent on the federal or state income tax return of any other person. . . .

"4. A domicile is a person's permanent place of abode; namely, there must be demonstrated an intention to live permanently or indefinitely in Maryland. For purposes of this policy only one domicile may be maintained at a given time. . . ."

       As part of the University's policy statement, several criteria are set forth for determining domicile:

"a. Own or rent and occupy real property in Maryland as one's domicile on a year-round basis. [284 Md. 429] "b. Maintain a substantially uninterrupted presence within Maryland for six consecutive months, including those months when the University is not in regular session.

"c. Maintain within the State of Maryland all or substantially all personal possessions.

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"d. Pay Maryland income tax on all earned income including all taxable income earned outside the State.

"e. Register all owned motor vehicles in Maryland.

"f. Possess a valid Maryland driver's license, if licensed.

"g. Register to vote in Maryland, if registered.

"h. Give a Maryland home address on federal and state income tax forms."

       Moreno's application for in-state status was denied based on the school's determination that neither he nor his father were Maryland domiciliaries. Otero was refused in-state status because he was not a United States citizen nor an alien admitted for permanent residence to this country. Upon denial of their applications, in accordance with University procedures, Moreno and Otero appealed to the Inter-campus Review Committee. The Review Committee also denied the requests, stating:

"The differential in tuition for in-state and out-of-state fees is based upon the principle that the State of Maryland should subsidize only those individuals who are subject to the full scope of Maryland tax liability. Such taxes support in part of University. The University of Maryland's present classification policies rest upon this principle of cost equalization. In examining the particulars of your case it is felt that neither you nor your parents are subject to the full range of Maryland taxes (e. g., income tax) and therefore the University must classify you as out-of-state with the consequential higher tuition rate. [284 Md. 430] "You have raised the question of domicile. It is our opinion that a holder of a G-4 visa cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile." (Emphasis supplied.)

       After the refusal by the Review Committee to grant Moreno and Otero in-state status, a final intra-school review was sought from the President of the University. He also refused their requests, stating:

"It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes only to United States citizens and to immigrant aliens lawfully admitted for permanent residence. Furthermore, such individuals (or their parents) must display Maryland domicile. This classification policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not. In reviewing these cases, it does not appear that the parents pay Maryland income tax. It is my opinion, therefore, that the aforesaid purpose of the policy, as well as the clear language of the policy, requires the classification of Mr. Moreno and Mr. Otero as 'out-of-state.'

"The University's classification policy also distinguishes between domiciliaries and non-domiciliaries of Maryland. In this regard, It is my opinion, and the position of the University, that the terms and conditions of a G-4 nonimmigrant visa preclude establishing the requisite intent necessary for Maryland domicile. Thus, because Mr. Moreno and Mr. Otero are not domiciliaries of Maryland, and because of the underlying principle of cost equalization, I am denying the requests for reclassification." (Emphasis supplied.) [284 Md. 431]

       The third plaintiff, Clare B. Hogg, was also denied in-state status. Her application was initially rejected by the University because:

"(T)he policy for the determination of in-state status limits the ability to establish an in-state classification to United States citizens and immigrant aliens admitted to the United States for permanent residence. As the person upon whom you are dependent holds a G-4 visa, and as you hold a G-4 visa, in my judgment you are not eligible for an in-state classification.

"Also, the person upon whom you are dependent does not pay Maryland income tax on all earned income, including income

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earned outside the state. I feel this further weakens your request for reclassification, as this is an important criterion in determination of domicile."

       She took an appeal to the Review Committee, which said:

". . . (A) holder of a non-immigrant visa, including the G-4 visa you hold, cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile."

       A final administrative appeal was taken to the University President, and he rejected the application for reasons similar to those given plaintiffs Moreno and Otero.

       Receiving no relief from within the University, the plaintiffs filed a class action against the school and its President in the United States District Court for the District of Maryland. 3 Plaintiffs sought injunctive and declaratory [284 Md. 432] relief for themselves and other similarly situated students covered by a G-4 visa, alleging that the defendant's refusal to give them in-state status violated various federal statutes, as well as the Due Process, Equal Protection, and Supremacy Clauses of the United States Constitution. 4

       In the District Court the plaintiffs maintained, Inter alia, that the University's policy created an irrebuttable presumption of non-domicile in violation of the Due Process Clause of the Fourteenth Amendment. The University adopted, the plaintiffs argued, an irrebuttable presumption that G-4 visa holders are incapable of establishing Maryland domicile, a fact that is not always true. On the other hand, the defendant asserted that in-state status is determined by the Maryland common law of domicile, and that the very terms and conditions...

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