706 F.2d 796 (7th Cir. 1983), 82-1595, Lister v. Hoover

Docket Nº:82-1595.
Citation:706 F.2d 796
Party Name:Thomas E. LISTER, et al., Plaintiffs-Appellants, v. Thomas H. HOOVER, et al., Defendants-Appellees.
Case Date:May 16, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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706 F.2d 796 (7th Cir. 1983)

Thomas E. LISTER, et al., Plaintiffs-Appellants,


Thomas H. HOOVER, et al., Defendants-Appellees.

No. 82-1595.

United States Court of Appeals, Seventh Circuit

May 16, 1983

Argued Sept. 22, 1982.

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Steven J. Kirschner, Ross & Stevens, S.C., Madison, Wis., for plaintiffs-appellants.

LeRoy L. Dalton, Asst. Atty. Gen., Dept. of Justice, Madison, Wis., for defendants-appellees.

Before ESCHBACH, Circuit Judge, SWYGERT, Senior Circuit Judge, and CAMPBELL, Senior District Judge. [*]

WILLIAM J. CAMPBELL, Senior District Judge.

This is an appeal from the district court's grant of summary judgment for the defendants in a case challenging the constitutionality of Wisconsin's procedures for determining the residency of individuals for tuition purposes at state universities. This case has been the subject of a state action, Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976); and two federal appeals, Lister v. Lucey, 575 F.2d 1325 (7th Cir.), cert. den. 439 U.S. 865, 99 S.Ct. 190, 58 L.Ed.2d 175 (1978); Lister v. Hoover, 655 F.2d 123 (7th Cir.1981). Based on the remand on the last appeal, the only issue before the district court was whether the Committee of Appeals at the University of Wisconsin (Madison) was required by the due process clause of the fourteenth amendment to give written reasons for its denial of a student's request to be classified as a state resident for tuition purposes. Upon cross motions for summary judgment, the district court answered the question in the negative and the plaintiffs appealed to this Court. We conclude that the district judge properly analyzed the issue raised and hereby affirm and adopt its opinion which is reprinted in the Appendix to this opinion.

SWYGERT, Senior Circuit Judge, dissenting.

The plaintiffs in this case are three former students of the University of Wisconsin at Madison who sought to be classified as Wisconsin residents for tuition purposes during 1971 and 1972, after residing in the state for more than one year. Wisconsin

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state law then in force established different tuition rates for residents and nonresidents, Wis.Stat. Sec. 36.16 (1971) (current version at Wis.Stat. Sec. 36.27 (1979-80)), and provided, with some exceptions, see id. Sec. 36.16(1)(a)-(ak), that "[a]ny student who has not been a resident of the state for one year next preceding the beginning of any semester for which such student registers at the university" must pay the nonresident rate, id. Sec. 36.16(1)(b). If nonresidency at the time of enrollment raised an irrebuttable presumption of continued nonresidency during a student's entire educational career, the statute would be unconstitutional as a denial of due process. See Vlandis v. Kline, 412 U.S. 441, 448, 93 S.Ct. 2230, 2234, 37 L.Ed.2d 63 (1973). The Wisconsin statute, as interpreted by the district court, avoided this pitfall by providing students an opportunity to rebut the presumption of continued nonresidency by applying for reclassification. In particular, the statute provided:

In determining bona fide residence, filing of state income tax returns in Wisconsin, eligibility for voting in this state, motor vehicle registration in Wisconsin, and employment in Wisconsin shall be considered. Notwithstanding par. (1)(a), a student from another state who is in this state principally to obtain an education will not be considered to have established a residence in Wisconsin by virtue of attendance at educational institutions.

Wis.Stat. Sec. 36.16(3) (1971) (current version at Wis.Stat. Sec. 36.27(2)(e) (1979-80), making the rebuttability of the presumption explicit). The plaintiffs sought to show bona fide residence in accordance with this section by demonstrating that they met all or nearly all of the nonexclusive listed criteria, and by submitting additional evidence of bona fide residency such as local home ownership, membership in local organizations, or the reclassification of a spouse as a resident. Each plaintiff was at least initially denied reclassification, and each challenged the procedure by which residency determinations are made. On this appeal the only issue is whether the due process clause of the fourteenth amendment requires the Appeals Committee, which reviews determinations of residency by the Registrar, to provide to unsuccessful applicants a statement of reasons for denial. Because I disagree with the majority's conclusion that no statement of reasons is required, I dissent.

Analysis of every due process claim requires a two-part inquiry: first, the identification of a life, liberty, or property interest entitled to procedural protection, and second, the determination of what process is due before the government may take action affecting that interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). No one disputes that in the present case the plaintiffs' claimed entitlement to lower tuition constitutes a property interest; the sole question before the court is what process is due. Although the standards for identifying appropriate procedures are inexact, I believe that Supreme Court decisions requiring statements of reasons as the minimal degree of process necessary for determining factual issues control the result in this case.

The framework for determining the necessary level of procedures was explicated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): a court must consider the nature and weight of the private and public interests involved, and the value of additional procedural safeguards. The individual interest in not paying the difference between nonresident and resident tuition rates, even if considered in one-semester increments (although I wonder whether the state could by this reasoning slice the plaintiffs' interest ever finer simply by allowing continuous reclassification requests), is weightier than the majority admits. Although the amount of money at issue may not be great on an absolute scale, the court must consider its importance to the individual. See id. at 341, 96 S.Ct. at 905; Goldberg v. Kelly, 397 U.S. 254, 261-63, 90 S.Ct. 1011, 1016-18, 25 L.Ed.2d 287 (1970). Requiring a resident student to pay the nonresident rate may delay or foreclose educational opportunities, which are an important interest even if not a "fundamental right." See Goss v. Lopez,

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419 U.S. 565, 575, 576, 95 S.Ct. 729, 736, 737, 42 L.Ed.2d 725 (1975). At the same time, the majority overstates the government's interest. Wisconsin's interest in maintaining the quality of its universities and preserving its financial resources by collecting higher tuition from nonresidents, although probably legitimate, see Vlandis v. Kline, 412 U.S. at 445, 93 S.Ct. at 2232, is not the interest at stake. Nor is Wisconsin's interest in controlling its treasury, out of which refunds may be paid to students whose classifications as nonresidents are reversed, at issue: if those students are determined to be residents, Wisconsin's interest in collecting higher tuition from them was disclaimed by the enactment of Wis.Stat. Sec. 36.16 (1971), which permitted the tuition preference for residents. Cf. Vlandis v. Kline, 412 U.S. at 448-49, 93 S.Ct. at 2234-35. Wisconsin's only interest is in avoiding the administrative burden of providing statements of reasons. This interest is small because the Appeals Committee already conducts individualized hearings, at which it is obliged to make reasoned and nonarbitrary decisions. "It simply is not unduly 'burdensome to give reasons when reasons exist. Whenever an application ... is denied ... there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government's action.' ... And an inability to provide any reasons suggests that the decision is, in fact, arbitrary." Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 39-40, 99 S.Ct. 2100, 2120, 60 L.Ed.2d 668 (1978) (Marshall, J., dissenting) (footnote omitted) (quoting Board of Regents v. Roth, 408 U.S. at 591, 92 S.Ct. at 2716 (Marshall, J., dissenting)). This deduction that the burden of stating existing reasons cannot be crushing is confirmed by the state's example in other cases. The Appeals Committee has in the past stated reasons for denials, see Zalucha v. Board of Regents, 99 Wis.2d 806, 301 N.W.2d 461, slip op. at 10 (Wis.App.1980), and the Registrar has stated reasons for decisions granting reclassification, see letter from T.H. Hoover to James S. Thiel (Jan. 7, 1972), App. 19.

The defendants argue, however, that the state has a further interest in not providing statements of reasons: they fear that if the residency standards are made so explicit, students will be able to comply and thereby thwart the state's...

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