Toll v. Moreno
Decision Date | 21 February 1979 |
Docket Number | No. 2,2 |
Citation | 397 A.2d 1009,284 Md. 425 |
Parties | John S. TOLL, President, University of Maryland v. Juan Carlos MORENO et al. |
Court | Maryland Court of Appeals |
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.
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 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, 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 sets forth standards for determining under what circumstances "in-state status for admission, tuition and charge-differential purposes" should be granted. It provides:
As part of the University's policy statement, several criteria are set forth for determining domicile:
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:
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:
The third plaintiff, Clare B. Hogg, was also denied in-state status. Her application was initially rejected by the University because:
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 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 of a G-4 visa prohibit these nonimmigrant aliens from establishing Maryland domicile.
The United States District Court, in an opinion by Judge James R. Miller, Jr., determined that there was nothing in Maryland law to prevent the plaintiffs from being domiciled in this State. It also found...
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