Webster v. State Bd. of Regents

• Decision Date: 14 August 1979
• Docket Number: No. 1,CA-CIV,1
• Citation: 599 P.2d 816,123 Ariz. 363
• Parties: Susannah Worden WEBSTER, Plaintiff-Appellee, v. The STATE of Arizona BOARD OF REGENTS, Defendant-Appellant. Christina Worden WEBSTER, Plaintiff-Appellee, v. The STATE of Arizona BOARD OF REGENTS, Defendant-Appellant. 4184.
• Court: Arizona Court of Appeals

Page 816

599 P.2d 816

123 Ariz. 363

Susannah Worden WEBSTER, Plaintiff-Appellee, v. The STATE of Arizona BOARD OF REGENTS, Defendant-Appellant.

Christina Worden WEBSTER, Plaintiff-Appellee, v. The STATE of Arizona BOARD OF REGENTS, Defendant-Appellant.

No. 1 CA-CIV 4184.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 14, 1979.

Wales & Plattner, P. C. by James Silhasek, Phoenix, for plaintiff-appellee.

Robert K. Corbin, Atty. Gen., John A. LaSota, Jr., Former Atty. Gen. by J. David Rich and Marilyn A. Pollard, Asst. Attys. Gen., Phoenix, for defendant-appellant.

HAIRE, Judge.

On this appeal from a judgment that ordered the Board of Regents to refund out-of-state tuition paid by appellees for the school year commencing August 30, 1975, the appellant board contends that the trial judge improperly substituted his judgment for that of the University Appeal Committee on Fee Status (appeal committee) in resolving the question of appellees' entitlement to classification as "in-state" students for tuition purposes.

Appellees are twin sisters who were admittedly domiciled in Ohio with their parents when they first enrolled at Arizona State University for the 1973 fall semester. After attending ASU during the fall 1973 and spring 1974 semesters, they returned to their home in Ohio for the summer of 1974. They alleged that when they returned to Arizona in August 1974 for the purpose of resuming their education, they did so with the intent of abandoning their domicile in Ohio and making Arizona their new domicile. They then enrolled at ASU for both the fall 1974 and the spring 1975 semesters. Thereafter, on June 29, 1975, they each filed a "Statement as to Residence" with the tuition classification officer at the university, seeking classification as in-state domiciliaries for tuition purposes beginning with the fall 1975 semester.

A.R.S. § 15-792A provides that no person shall be entitled to classification as an "in-state student" until he has been domiciled in this state for one year. The parties agree that in order to meet the one year domicile requirement, it was incumbent upon appellees to show that they had established domicile in Arizona no later than August 30, 1974. For the purpose of determining in-state student status for tuition purposes, domicile is defined in A.R.S. § 15-791(2) as follows:

" 'Domicile' means a person's true, fixed and permanent home and place of habitation. It is the place where he intends to remain, and to which he expects to return when he leaves without intending to establish a new domicile elsewhere."

We do not interpret this statutory definition as varying materially from the ordinary concept of domicile as established in Arizona case law, including the concept that proof of domicile resolves to essentially two elements: a showing of the required state of mind, combined with actual physical presence. See Arizona Board of Regents v. Harper, 108 Ariz. 223, 495 P.2d 453, 56 A.L.R.3d 627 (1972). However, Arizona decisional law has imposed a high burden of proof upon the student seeking a determination of domicile for tuition purposes. The student must prove by clear and convincing evidence that he has established the required domicile. This burden has been imposed because proof of domicile involves "basically subjective material which is conditioned by the advantage (of) the declarants." Arizona Board of Regents v. Harper, supra, 108 Ariz. at 229, 495 P.2d at 459. In addition, the student's burden is made even more difficult by the presumption created in A.R.S. § 15-793(1):

"Unless the contrary appears to the satisfaction of the registering authority of the community college or university at which a student is registering, it shall be presumed that:

"1. No emancipated person has established a domicile in this state while attending any educational institution in this state as a full-time student, as such status is defined by the governing board of the community colleges or universities, in the absence of a clear demonstration to the contrary."

The tuition classification officer denied appellees' request for in-state student classification, and appellees appealed to the University Appeal Committee on Fee Status. After considering documentary evidence and appellees' oral testimony, the appeal committee likewise declined to grant in-state classification status to appellees. Appellees then timely appealed the committee's determination to the Maricopa County Superior Court, pursuant to the provisions of the Administrative Review Act, A.R.S. §§ 12-901 Et seq.

Since a hearing had been held and a record kept of the proceedings before the appeal committee, review in the superior court was not De novo, but rather was on the record as established before the appeal committee. See A.R.S. § 12-910. Although the Administrative Review Act contains no statutory provision setting forth the standard to be employed by the superior court in conducting an agency review on the record, the appropriate standard has been fully developed by Arizona case law. The trial judge may not merely substitute his judgment for that of the administrative agency involved. Instead, before a reversal is justified, the trial court must find that the agency has acted arbitrarily, capriciously, or has abused its discretion. See Arizona Department of Economic Security v. Lidback, 26 Ariz.App. 143, 546 P.2d 1152 (1976). ¹ In the resolution of factual issues, this standard requires a determination of whether there was substantial evidence to support the agency's decision. If two inconsistent factual conclusions could be supported by the record, then there is substantial evidence to support an administrative decision that elects either conclusion. Sundown Imports v. Arizona Department of Transportation, 115 Ariz. 428, 565 P.2d 1289 (App.1977).

In Arizona Board of Regents v. Harper, supra, the Arizona Supreme Court also had before it questions concerning rulings made by a university appeal committee relating to in-state classification for tuition purposes. In that decision the court criticized the failure of the Board of Regents to set forth specific rules and guidelines governing the determination of domicile for tuition purposes. Immediately after the issuance of that decision, the Arizona legislature enacted the statutes previously referred to herein, ² as well as § 15-794, which directed that the appellant board adopt appropriate guidelines for the determination of domicile questions. ³

Pursuant to that statutory mandate, on September 23, 1972, the board adopted and promulgated guidelines entitled "Information and Guidelines for Determining Tuition Status". Section 4 of those guidelines is entitled "Evidence to be Considered in Classification Proceedings", and specifies that in determining domicile the committee may consider any relevant evidence, including, but not limited to, certain specified items. ⁴ In its brief filed in this Court the board points out in support of the appeal committee's decision that of all the items specified in Section 4 of the Guidelines, appellees can only demonstrate compliance with one of these items (the establishment of a bank account in January 1974 by one of the appellees) prior to August 30, 1974, the date when domicile must be deemed to have been established in order to successfully overturn the committee's decision. ⁵ The record does not support appellees' claim that prior to the 1974 registration they "rented and occupied an apartment in Tempe, Arizona having with them all of their personal possessions." Rather, the record shows that the rental of the apartment occurred in September of 1974, and only that they had all of their personal property with them in Arizona by the date of the hearing, July 24, 1975. The other evidence relied upon by appellees includes their own subjective statements as to their intent to establish domicile when they returned to Arizona in August 1974, and evidence indicating that they registered to vote on September 16, 1974; obtained Arizona driver's licenses on October 31, 1974; and had opened checking accounts in January 1975. In the summer of 1975, prior to the hearing in this matter, appellees first became employed in Arizona, and although the record is unclear, there is some indication that at that time Arizona income taxes were being withheld from the paycheck of at least one of appellees. There is nothing in the record to indicate that either of appellees have either filed or paid Arizona income taxes, apart from the above.

The appellees view the appeal committee's decision as demonstrating a requirement by the committee that all physical manifestations of domicile (as applicable from the guidelines) must occur prior to the pertinent date for the initial establishment of domicile, here August 30, 1974. We agree that any such absolute requirement would be invalid, since generally the required intent to establish domicile may be shown by circumstantial evidence of a person's acts and conduct occurring after, as well as before, the date in question. See 28...