Covell v. Douglas

• Decision Date: 02 October 1972
• Docket Number: No. 25353,25353
• Citation: Covell v. Douglas, 501 P.2d 1047, 179 Colo. 443 (Colo. 1972)
• Parties: Bradford C. COVELL, Petitioner-Appellant, v. William A. DOUGLAS et al., Respondents-Appellees.
• Court: Colorado Supreme Court

Page 1047

501 P.2d 1047

179 Colo. 443

Bradford C. COVELL, Petitioner-Appellant, v. William A. DOUGLAS et al., Respondents-Appellees.

No. 25353.

Supreme Court of Colorado, En Banc.

Oct. 2, 1972.

Rehearing Denied Oct. 30, 1972.

Donald C. Peters, David D. Belina, Legal Aid and Defender Program, University of Colorado, School of Law, Boulder, for petitioner-appellant.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Denver, John P. Holloway, Asst. Atty. Gen., Resident Legal Counsel, University of Colorado, Boulder, for respondents-appellees.

DAY, Justice.

Appellant, Covell, alleged that he had been a student at the University of Colorado for the fall term of 1969, and the spring term of 1970, and was classified as an out-of-state student for tuition purposes. Seeking to return to school in January, 1971, he requested that the University classify him as an in-state student since he had been domiciled in Colorado for one year as required by 1967 Perm.Supp., C.R.S.1963, 124--18--2(2). He was denied the change apparently on the ground that he had not complied with 1967 Perm.Supp., C.R.S.1963, 124--18--3(3).

Thereafter, Covell instituted the within action by filing a petition for declaratory judgment challenging the constitutionality of section 124--18--3(3), and for further relief in the nature of mandamus. He alleged in his petition that he had been a domiciliary of Colorado since September, 1969, because of a) residence in the state since that time; b) his stated intent to make Colorado his domicile; c) his having obtained a Colorado driver's license; d) his registration as a voter and actually having voted in Colorado; e) his having obtained employment in Colorado and payment of Colorado income taxes through withholding; and f) his having maintained a bank account in a Colorado bank. Covell additionally alleged that he has been a qualified person to determine his own domicile since January 1, 1970, when he became an emancipated minor; and further that he had attained his twenty-first birthday in September, 1970. Moreover, Covell alleged that he had no intention of returning to his former domicile, nor to acquire a domicile at some place outside Colorado.

The University moved for judgment on the pleadings, which was granted, and the action was dismissed with judgment for costs entered against Covell.

Appellant does not deny the validity of his original classification as an out-of-state student, nor does he contest the validity of any other provision of C.R.S. 1963, 124--18--1 et seq. As a consequence, there is no challenge herein to the right of the state to require a full year's residence in Colorado and to the necessity for presenting other evidence of domiciliary status. The portion of Section 124--8--3(3) which Covell attacks reads:

'* * * An emancipated minor or adult student who has registered (as a full-time student) for more than (eight) hours per term shall not qualify for a change in his classification for tuition purposes unless he shall have completed twelve continuous months of residence while not attending an institution of higher learning, (public or private) in the state * * *.'

The narrow issue presented is Covell's argument that the above-quoted subsection (3) establishes a conclusive pre-sumption which bars him from changing his status as a domiciliary in Colorado unless he abandons his education for one year or reduces his attendance to less than eight hours in each term of the year. This burden, Covell claims, is constitutionally impermissible under the rule as announced in Kline v. Vlandis, 34l F.Supp. 526 (D.C.Conn., 1972). See also Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. We agree and reverse the trial court's judgment.

I.

After the briefs were filed in this case and subsequent to oral argument, Robertson v. Regents of University of New Mexico, (No. 9515), was decided on August 3, 1972, by a federal three judge panel in the New Mexico United States District Court. In that case a New Mexico statute, strikingly similar to the section in the Colorado statute under consideration herein, was declared to be unconstitutional. The portion of Chapter 98, Paragraph K, New Mexico Session Laws 1972, reads as follows:

'No person who was classified as a 'non-resident' for tuition purposes upon his initial enrollment in a public institution of higher education in this state shall have his status changed to that of a 'resident' for tuition purposes unless he has maintained domicile in this state for a period of not less than one year during which entire period he has not been enrolled, for as many as six hours, in any quarter or semester, as a student in any such institution. This restriction shall not apply to a married woman living together with her non-student husband.'

In declaring the offending section null and void and excising it from the New Mexico 1972 Session Laws, the federal three judge court held:

'Individuals who have once been classified as non-residents for tuition purposes are by the foregoing provisions explicitly barred for changing their status to residents for tuition purposes unless they are enrolled for fewer than six hours in any semester or quarter for a period of not less than one year. This in effect creates an irrebuttable presumption that a student who first enrolled as a non-resident student remains a non-resident student for tuition purposes unless the undergoes the unreasonable and arbitrary burden of abandoning the major portion of a year's education. The classification thus created is unreasonable, arbitrary, and violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and Article II, Sec. 18 of the Constitution of the State of New Mexico.'

As we are doing in the case at bar, the New Mexico court limited its action to the one section, holding:

'This action concerns solely the constitutionality of the portion of Chapter 98, New Mexico Laws 1972, set forth in Finding of Fact No. 2. No issue has been raised herein with respect to either the power of the State of New Mexico to establish a one year durational residency requirement for payment of resident tuition or the power of the State of New Mexico to establish the age of majority, and no ruling is made thereon.'

Additional authority for our resolution of the question herein is Kline v. Vlandis, Supra, also decided by a panel of three federal judges who considered a Connecticut statute which absolutely barred one classified as an out-of-state student from ever obtaining a change in that...