Elkins v. Moreno – Oral Argument – February 22, 1978

Media for Elkins v. Moreno

Audio Transcription for Opinion Announcement – April 19, 1978 in Elkins v. Moreno

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Warren E. Burger:

We’ll hear arguments next in Elkins against Moreno.

Mr. Feldman, I think you may proceed when you’re ready.

David H. Feldman:

Mr. Chief Justice, and may it please the Court.

In the case now before you, the petitioner, the President of the University of Maryland, urges this Court to preserve the rational system of assigning tuition to students that prevails at most public colleges in universities across the nation.

Following the 1973 decision of this Court in Vlandis against Kline, public institutions of higher education adopted new policies for determining students’ admission, tuition rates, and other charges.

The policy is adopted by the University of Maryland and most other publicly supported schools look not only to the domicile of the students in granting preferential in-state status, but also are predicated on a number of legitimate grounds for according differential consideration in defining who is entitled to the benefit of lower fees.

Thus, while the policy of the University of Maryland generally looks to who is financially responsible for bearing a student’s education on other cost and then looks to the domicile that person whether it be the student, his parent, or spouse.

In order to accommodate the legitimate and preserved by the policy, it recognizes that variations from the general applications are both necessary and appropriate.

For example, both resident students and permanent resident aliens can and do qualify for in-state status at the University of Maryland.

By contrast, nonresident citizens and nonimmigrant aliens are denied preferential treatment.

Similarly, the University’s policy denies its benefits to a group of citizens whose association with and contributions to the state are likely to the minimal and transitory, specifically to those members of the Armed Forces who come to the University not by choice but by assignment for educational purposes.

In May 1975, respondents, three undergraduate students at the University of Maryland, filed this action for declaratory and injunctive relief in the United State District Court for the District of Maryland.

Each was financially dependent on his father, an employee of an International Bank in Washington D.C. who held as did his child a nonimmigrant G-4 visa.

G-4 nonimmigrant visas are given to officers or employees of international organizations and the members of their immediate families.

As one seeking to be a nonimmigrant alien, a person applying for a G-4 visa must state under oath the purpose and length of his intended stay in the United States can be admitted only for such time and under such conditions as the Attorney General made by regulations prescribed, and is required by the applicable regulations to agree to abide by all the terms and conditions of his admission and to depart at the expiration of the period of his admission for the abandonment of his authorized nonimmigrant status.

Such nonimmigrants are decisively disqualified by federal law from establishing a permanent residence in this country because the Immigration and Naturalization Act accords a privilege of residing permanently in the United States, only to aliens lawfully admitted for permanent residence.

In the District Court, represented by Council retained by the International Banks for which their fathers worked, respondents urged that the University’s policy of denying in-state status to the holders of G-4 nonimmigrant visas where those financially dependent on the holders such visas.

Byron R. White:

What do you mean by permanent residents?

Is that the term regarding the immigration laws?

It means you can stay as long as you — forever if you want it.

David H. Feldman:

That — that is correct, that is a reference to Section 1101 (a) (20) of Title 20 of the United States Code.

Byron R. White:

Where you will get to it but that probably has too much connection with domiciles.

David H. Feldman:

Well, if the Court please, I think it was — has been suggested both by the Court’s majority opinion in Nyquist against Mauclet last term and particularly by Mr. Justice Rehnquist’s dissent in that case that aliens who are nonimmigrants are under a disability from being domiciled in this country or at least most categories of aliens who are nonimmigrants and for that matter that is a factor which is conceded by the respondents in this case as I’ll connote later during the argument.

Respondents urged in the District Court that the University’s policy of denying in-state status to them violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The District Court held in July 1976, that the University’s policy as applied to G-4 nonimmigrant visa holders, created a permanent irrebuttable presumption of nondomicile in violation of the Due Process Clause and thus the District Court did not reach the equal protection claim now reasserted here by the respondents.

Warren E. Burger:

With your position is that the United States has never admitted these people for permanent residence?

David H. Feldman:

That — that is correct —

Warren E. Burger:

Only temporary.

David H. Feldman:

I — I think that is clear from the conditions of their admission to this country both by virtue of their nonimmigrant status and by virtue of the regulation prescribed by the Attorney General requiring them to depart at the conclusion of their authorized admission.

Warren E. Burger:

Are they authorized to become citizens?

Warren E. Burger:

Could they apply for citizenship —

David H. Feldman:

I think —

Warren E. Burger:

— while they’re in their status?

David H. Feldman:

— they would not be authorized to apply for citizenship while in this status.

They would be required to adjust their status to that of an alien lawfully admitted for permanent residence and then they would be subject to the five-year requirement which usually apply.

Warren E. Burger:

Presumably they could only apply but they could not become citizen you are saying while they are in their status?

David H. Feldman:

That is correct.

That the District Court relied upon Vlandis versus Kline in its unvarnished state that is without reference to this Court’s numerous decisions dealing with state classifications or other irrebuttable presumptions not affecting fundamental rights.

William H. Rehnquist:

Well, Mr. Feldman, you say in its unvarnished state, at least you’re older in that position here is not as — that this case is different than Vlandis against Kline.

David H. Feldman:

Yes.

It’s our position in this case that even if Vlandis had not been reinterpreted by Weinberger against Salfi in subsequent decisions of these Court that the presumption said to be an issue in this case, one, is not permanent in the sense of Vlandis against Kline.

And two, entirely apart from that, that the presumption said to be an issue is universally true and therefore not prohibited under Vlandis against Kline.

William H. Rehnquist:

In — in other words, you would be saying that for purposes of Maryland in-state tuition regulations and nonimmigrant alien simply by definition can’t qualify.

David H. Feldman:

That is correct, that is the position —

Byron R. White:

And if you measure entitlement by domicile, by definition, the Maryland can say that you can never be a domicile here because of the federal law.

David H. Feldman:

That is our position.

William H. Rehnquist:

And therefore a Vlandis type inquiry, at least under this hypothesis, which shed no light on anything at this state uses in the term making its decision.

David H. Feldman:

Well, I think the Vlandis type inquiry does not preclude the state from shelling that there are legitimate policy objectives of the state in constructing its policy and in essentially defining domicile in such a way as to preclude these persons consistent with federal law —

Byron R. White:

The presumption is always true as Brother Rehnquist says.

Presumption is always true so there’s no violation.

David H. Feldman:

That is our position.

William H. Rehnquist:

When I said Vlandis type inquiry, I meant the type of inquiry mandated in Vlandis to consider individual circumstances.

Your position is that nothing that such an inquiry would turn up, would do these particular respondents any good because they are by rule forbidden from acquiring in-state tuition state?

David H. Feldman:

That would be true, only so long as those persons did not adjust their status to that of an alien lawfully admitted for permanent residents —

Potter Stewart:

Mr. Feldman, in that connection, I want to be sure I understand your position.

As I understood your brief, you indicate that the University’s policy simply tracks the state law of domicile, the Maryland law of domicile.

That under Maryland law, a G-4 alien or somebody in his family could not be domiciled in Maryland because they could never have the necessary intent required by Maryland law to be a domiciliary thereof.

Now if it were shown, if it were shown by an authoritative decision of the Maryland Courts, that the Maryland law is other than which you understand it to be and represent it to be, would the University changes policy to confirm, to the then clear Maryland law, or whether persistent to continue in the present laws.

David H. Feldman:

Well, I think it is entirely possible that the University would change its policy.

However, I think petitioner’s position in the matter would be that the University would still not be required to change the policy, the reason being that there are other legitimate objectives of the policy such as cost equalization and according preferential treatment only to those who are liable for payment of a full spectrum of state taxes that would adjust to this case.

Potter Stewart:

–(Voice Overlap) this case.

If — if the University reports to differentiate intuition between domiciliaries and nondomiciliaries and if it were shown that G-4’s could become domicilaries of Maryland and if nonetheless you prevented any G-4 from ever having the lower tuition right as you would clearly have at Vlandis case, would you?

David H. Feldman:

That — that would be true only if the University’s only objective in having its policy with the determined domicile and the point that I’ve been trying to make to Your Honor is there are other legitimate policy objectives which are taken into account in the University’s construction of its policy.

Potter Stewart:

Now did I misapprehend that your brief when I thought you were saying that you know more than were following the law of Maryland as to domicile and that under that law, a G-4 could never become a domiciliary of Maryland?

David H. Feldman:

Well, that is the position of the University but it is further the position of petitioner in this case that that is not the only basis on which the University’s policy rests.

William J. Brennan, Jr.:

Let me get back in a moment to Mr. Feldman.

There is no — you don’t give us any Maryland judicial decisions which hold or at least any of this positive which hold that the G-4’s can establish Maryland domicile, do you?

David H. Feldman:

There are no Maryland decisions one way or the other —

William J. Brennan, Jr.:

Did you resist the effort to certify to new Court of Appeals that question?

David H. Feldman:

No, on the contrary, in the District Court and further briefed in the Court of Appeals of the Fourth Circuit, the University took the position that the federal courts should abstain on the question of whether persons holding G-4 visas were in fact capable of acquiring Maryland domicile in favor of the decision of a Maryland Court.

William J. Brennan, Jr.:

Well, I persist with that position in this Court?

I gather your certification rule, notwithstanding what happened on the lower Courts, we could still certify.

David H. Feldman:

Yes, this Court could do that.

William J. Brennan, Jr.:

And what’s your position about that, should we or should we not?

David H. Feldman:

I’m not urging the Court to do that principally because I think the University is —

William J. Brennan, Jr.:

Well, do you object to our doing it?

David H. Feldman:

Certainly not.

William H. Rehnquist:

Well, Mr. Feldman, if there were to be certification, should the question be, what is the general Maryland law of domicile or what policy is the University permitted to adopt with respect to in-state tuition fees under the law of Maryland?

David H. Feldman:

I think it should probably be the latter question because the policy of the University does try to take account of other factors in addition to domicile in determining who appropriately is entitled to the benefit of lower tuition fees.

I think the difficulty that however that is potentially raised with certifying the second question, is it essentially asks the Court of Appeals of Maryland to make what I would suggest to the Court as a policy decision which is more properly entrusted to the regions of the University.

William H. Rehnquist:

Well, wouldn’t the certification simply ask the Maryland Court of Appeals, whether the regions had the authority under Maryland law to make that decision?

David H. Feldman:

If that were the question certified to the Court, I would submit that that would be internally appropriate.

John Paul Stevens:

Mr. Feldman, let me just clarify one thing on my own mind.

You suggest that the present rule may rest either on a domicile test or on this other consideration such as paying the full range of taxes.

Is it not correct that the rule of this actually an issue is one based on domicile only?

David H. Feldman:

If the Court, please and if, Your Honor, Mr. Justice Stevens please, that that is not entirely the case and the fact that — or the proof of that is seen by reference to the University’s general policy which is reprinted in the brief of petitioner at page 7.

And first, I might note that it is the general policy which is described there, not only the focused sole reason for what the policy is.

But in that regard, I would refer the Court to paragraph 1 subsection d, which in a list of classes to which in-state status is accorded indicates that such status is available where a student who is a member of the Armed Forces of the United States is stationed on act of duty in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester, unless such student has been assigned for educational purposes to attend the University of Maryland.

I would submit that such a student assigned for educational purposes to the University of Maryland might will himself have been before entering the service and while in the service of domiciliary of Maryland, but the regents had taken the position in that case since the Federal Government is bearing the cost of the student’s education and in particularly, military department of the Federal Government, that in that instance it is not appropriate to accord in-state fees without reference to domicile.

And I — I think that is a —

John Paul Stevens:

I was under the impression — maybe I — I may not have completely followed that, that every person who could establish that he was a domicile, he or she was a domiciliary of Maryland, would be treated as an in-state applicant.

David H. Feldman:

That is only correct in so far as the general classification is concern.

It is not true in the instance of both members of the military assigned for educational purposes rather than coming by choice.

It is further not true in the case of nonimmigrant aliens the overwhelming majority of which if not all of which we believed to be under a legal disability from being domiciled in a State.

But the basis with respect to nonimmigrant aliens is as to those who are — for example, on student visas or on other transitory states in the United States that their relationship to the State and their liability for the full payment of state taxes, if any, will be fleeting at most, so that in the long run, their contribution to the University will not be particularly great.

In the case of G-4 nonimmigrant visa holders and diplomats, for example, who would be a similar category such persons are under no liability to pay federal or state income taxation, and because of their non-liability for payment of the full spectrum of taxes, their contributions to the university in the long run would be minimal as well.

John Paul Stevens:

Let me ask you — put the question just a little differently.

If we did certify to the, the domiciliary issue to the Court of Appeals in Maryland and they came back with an answer that said that G-4 — a person with the G-4 visa is capable of forming the requisite intent to establish domicile, what would happen in this case?

David H. Feldman:

I think the odds are, are reasonably high that the case would become moot because the University would change its policy, but that policy judgment is one that would be made by the regents.

And I have suggested previously and I would again that I think it is – well, within the discretion of the regents in terms of —

John Paul Stevens:

You said that if it changed its policy, wouldn’t it just apply its existing policy and say that some of these people would then be eligible to be considered?

David H. Feldman:

It would not because the existing policy specifically precludes from eligibility persons not United States citizens or aliens lawfully admitted for permanent residence.

That preambulatory language is part of the first paragraph of the general policy has currently written.

The general policy as currently written says, “It is the policy of the university to grant in-state status for admission tuition and charge differential purposes to United States citizens and to immigrant aliens lawfully admitted for permanent residents in accordance with the laws of the United States in the following cases.”

And then they are listed.

So, there are still would be a requirement of the policy as being amended.

I try to suggest previously by one of my remarks that we believe Vlandis against Kline not to be the same case as it was in 1973 in any event, and that the University’s policy premises need not to be universally true or perfect —

John Paul Stevens:

Mr. Feldman, I’m sorry it takes so much time, but I -– I really — I don’t –- I don’t understand.

I read paragraph 1(a) of that paragraph and why if the Maryland Court told us that the parents were domicile and the child, why doesn’t 1(a) entitle a student to admission?

David H. Feldman:

Because 1(a) is a specific subcategory of one which limits A and specifically says it is only the policy with respect to United States citizens and to immigrant aliens lawfully admitted for permanent residence.

And the G-4 are neither of those categories.

John Paul Stevens:

Oh, I see.I see.

David H. Feldman:

As this Court indicated last term Califano versus Jobst state classifications are not gauged properly by focusing on selected atypical examples of the class.

Starting with Weinberger versus Salfi in 1975, two years before, a long and unbroken line of this Court’s decisions makes clear that state classifications not affecting fundamental rights do not create unconstitutional irrebuttable presumptions or otherwise violates Due Process Clause if rationally related to legitimate governmental objectives.

Obviously, a claim of a preferred tuition rate, whether or not the excess is paid by parent’s International Bank employer, does not involve a basic human liberty or a fundamental constitutional right.

And thus, many legitimate grounds proffered by petitioner in this case are more than sufficient.

Before discussing this rationale basis, perhaps a word or two should be said about Salfi.

Salfi involved an irrebuttable presumption in the Social Security Act which effectively held marriages lasting less than nine months to be shams and denied benefits.

Absent from the Court’s opinion was any language of strict scrutiny or at least restrictive alternative and the focus was upon Starns versus Malkerson where the Court said, what we believe should be restated in this case, “The benefits here are available upon compliance with an objective criterion, one which the legislature considered to bare a sufficiently close nexus with underlying policy objectives to be used as a test for eligibility.”

Like the plaintiff in Starns, appellees are completely free to present evidence that they need to specific requirements.

David H. Feldman:

Feeling in this effort, their only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive them of benefits available to those who do satisfied the test.

And in the Usery versus Turner case, a year later, the Court indicated that whether or not a classification stated an irrebuttable presumption on its base was irrelevant when its operation and the fact were completely permissible.

Similarly in Califano versus Jobst and the Massachusetts Board of Retirement versus Murgia cases of last year and the year before, the Court sustained what we were obvious facial or otherwise irrebuttable presumptions.

Despite the fact that in Murgia, an administrative device existed but was not used and annual physical examination to inquire into the factual matter that was presumed namely that policeman were unfit to serve at age 50.

Just how little is left of the irrebuttable presumption doctrine was made clear by Mr. Justice Blackmun’s opinion for unanimous Court in Ohio Bureau of Employment Services versus Hodory from the last term, a case not cited in any of the briefs before this Court in this case but one which we now believe to be particularly relevant.

There are three-judge Court and had invalidated on equal protection and due process ground, and Ohio statute denying an employment compensation other than because of a lockout of an employer.

In reversing the District Court, this Court noted that legitimate interest of the State in preserving the integrity of its fund and dismissed the irrebuttable presumption claim on a footnote stating, “This argument requires several assumptions.

First, appellee must assume that the purpose of the statute is to measure innocence.

Then, he must assume that the disqualification provision represents a presumption that any person laid off due to a strike is not innocent.

If the statute is designed to serve any purpose other than measuring innocence, appellee’s implication of an irrebuttable presumption fails.

As we discussed below, the statute clearly has purposes other than measuring the innocence of the disqualified worker.”

Similarly, the policies of the University of Maryland and at most other public institutions or prior education which deny in-state status to nonimmigrant aliens have a number of purposes other than the measure of domicile.

These policies effect a recent decision to equalize the cost of college and university training between those with continuing liability to support public higher education by paying the full spectrums of state taxes and those such as nonimmigrant employees of the International Banks who do not have that obligation.

Tuition payments at public institutions of higher education represent only a portion of a true cost and the amount available for state subsidized educational benefit is not limitless.

It is note —

Harry A. Blackmun:

Mr. Feldman, did the District Court find that the — what the Maryland law was with respect to domicile?

David H. Feldman:

The District Court took the position that under the Maryland law of domicile G-4s were not precluded from being domiciled in Maryland.

Harry A. Blackmun:

So the — the District Court – the District Court has already answered the question that – that there has been a suggestion it should be certified to the Maryland Court.

David H. Feldman:

That it — it has answered the first question that Mr. Justice Rehnquist suggested was a possibility.

Namely, whether as a matter of theory, G-4s could be domiciled.

It has not answered his second question which I think he suggested was a preferred question.

Harry A. Blackmun:

As the — the District Court though has says that under — as it understands Maryland law, G-4s are not forbidden or not precluded from becoming domiciliaries.

David H. Feldman:

That — that was the District Court’s conclusion, that’s correct.

Harry A. Blackmun:

And the — you — you disagree with that interpretation in Maryland law, I take it?

David H. Feldman:

That — that is also correct, Your Honor.

Harry A. Blackmun:

But then, why should we — if we — let’s assume we were just bound with — to the — to take the District Court’s view on Maryland law, what should we do?

We should just affirm, shouldn’t we?

David H. Feldman:

No, I don’t believe that’s to be the case and that’s the point I’m trying to make now namely that the University’s policies served many purposes other than measuring domicile and I’m trying to get to those in the few brief seconds that I have.

Harry A. Blackmun:

Well that the – did the District Court reach — didn’t reach those questions?

David H. Feldman:

That is right because on the District Court’s finding, it determined that there was a permanent irrebuttable presumption under Vlandis without — that was not universally true, without reference to the later cases which cast out on those requirements.

William H. Rehnquist:

Well, isn’t your position also the University’s position by the rule is not necessarily the same as the Maryland law of domicile?

David H. Feldman:

That is entirely correct, Mr. Justice Rehnquist.

That — that is our position because the policy serves other purposes is clearly intended to serve other purposes.

Warren E. Burger:

And the District Court didn’t treat that aspect, did they?

David H. Feldman:

No, the District Court never — never reach those questions because of its —

Warren E. Burger:

You have only about four minutes left now to make that point.

You better proceed to it.

David H. Feldman:

Thank you Mr. Chief Justice.

The University’s policy in addition to favoring those with continuing liability to support public higher education by the payment of the full spectrum of state taxes also encourages, they even handed an efficient administration of its in-state determination and appeals process limiting hearings for its 550 nonimmigrant students to the objective criterion of changes in their immigration status and reducing the need for full-blown hearing as many requiring interpreters.

If respondent’s arguments are accepted, the University’s rational dividing line will give way principally in favor of employees described recently by a senate committee as possessors of sinecures where extraordinarily high salaries are common place in pursuit of cringe benefits has been raised to a form of art.

It is the less fortunate categories of G-4 aliens that will left out in the cold (Inaudible) respondent’s arguments are accepted.

The University’s policy in those most other public institutions serve all of the purposes noted.

They do not measure domicile only or view it in a vacuum and —

John Paul Stevens:

Mr. Feldman, I don’t understand how a service of policy have been encouraging the payment of taxes.

These people are not going to pay taxes no matter what the University does.

David H. Feldman:

The University’s policy as a general matter —

John Paul Stevens:

Do you think somebody is putting the favor, not pay his taxes depending on the result of this case?

David H. Feldman:

No, the point that I’m trying to make Mr. Justice Stevens is that those persons who have given preferential treatment by the university are those liable for the full payment of the full spectrum of — of state taxes, whereas those who are not favored out of staters, nonimmigrant aliens, those who pass through the State for short periods or in the case of the G-4s are not liable for taxes don’t receive the benefit for that reason —

John Paul Stevens:

Well, in the case of any –

David H. Feldman:

— because the case is already subsidizing them by not charging them income taxes.

John Paul Stevens:

In the case of any permanent resident alien or any citizen, the question of whether or not he pays any taxes is totally irrelevant to your standards of whether it is admitted, isn’t that true?

David H. Feldman:

It — it is not totally irrelevant because it is generally those persons who are liable to — for the full spectrum of taxes who were given the preferential treatment.

It is true that the policy does not look in individual cases as to whether an individual has in fact, pay those taxes or is in fact liable for them because he has made enough money.

Warren E. Burger:

Well, have not our cases taken known to the fact that they are liable for taxes, liable for military duty if they’re here as permanent residents?

David H. Feldman:

Yes, that is specifically the point that was made in Nyquist against Mauclet —

Warren E. Burger:

Would these people be —

David H. Feldman:

Mauclet.

Warren E. Burger:

Would these people be subject to compulsory military service if we had it?

David H. Feldman:

No, the — these people would not because it —

Potter Stewart:

But how do we know?

Potter Stewart:

We don’t know what the law would be.

We don’t have it.

David H. Feldman:

These people I think it is clear (Inaudible) by treaty.

Potter Stewart:

And if we do have it, it will require Congress to enact another law and we don’t know what that law would — could possibly be and could we possibly know.

Warren E. Burger:

On the basis of the past law, you are certainly entitled to make that representation if that’s your view of the matter.

David H. Feldman:

Well, I –- I think that it is clear that under the present law persons who are here on G-4 visas are not liable for military service or not liable for federal or state —

Warren E. Burger:

There is no compulsory in military service now of course.

David H. Feldman:

That is – that would be true even if they would —

Warren E. Burger:

Your position is that on the law as the last — was before the change there would be — there would not be liable for military service.

David H. Feldman:

That is correct.

I believe my time is up and I’m sorry that I haven’t got into the one or two other points that I’d hoped to make but I’d be happy to respond to your question.

Byron R. White:

Am I under misapprehension, but are there not immigrant aliens who enjoy income tax immunity and nevertheless able to qualifies in-state students in Maryland?

David H. Feldman:

I think it is true that there are immigrant aliens who enjoy income tax liability.

As an example, if G-4 in this —

John Paul Stevens:

— immunity exception.

David H. Feldman:

I’m sorry, I didn’t hear you.

Thurgood Marshall:

You said —

Byron R. White:

You enjoy income tax immunity?

David H. Feldman:

I — I misspoke myself.

I’m sorry.

I think it is true that there are immigrants who enjoy immunity and in fact in this particular case, it is a position of respondents that even were they to adjust their status to that of lawfully admitted for permanent residents that if they continue to work for the international banks, they would still not be subject to federal or state income taxation.

And I think the only point to be made with respect to that is that if you focus in on that, you are focusing in on the atypical examples which this Court indicated were not pertinent in Califano versus Jobst, and then as a general matter, nonimmigrants are subject to the full spectrum of taxes.

Byron R. White:

(Inaudible)

Warren E. Burger:

Mr. Scanlan.

Alfred L. Scanlan, Jr.:

Mr. Chief Justice, may it please the Court.

The three young students of the University of Maryland and their family, I think who are named as plaintiffs in this case and respondents to this Court, are typical of — most of the members of the class for which I speak today.

Their parents have own property in Maryland ranging from seven to 15 years.

They pay every single tax levied by the State of Maryland except the income tax on their salaries, which they cannot do because by international agreement treaty if you will, that income is exempt from federal and state income taxation.

They’ve lived here many years in two of the three cases they have attended elementary schools and secondary schools public and parochial without interruption.

One of them has a mother who is in Maryland — an American citizen and can vote in American elections.

Alfred L. Scanlan, Jr.:

They have no property, their parents I mean, no property back home.

One exception is a small bank account in England that pays insurance.

Warren E. Burger:

Well, would it make any difference to this case if they had a million dollar in estate out in the country or somewhere?

Alfred L. Scanlan, Jr.:

Well, I could see where would make it — there would be a difference in the ability to show domicile if you have chateau in Bolivia and return there every year.

But all we are asking for you, Your Honor, is the opportunity, just the opportunity to prove domicile, but the University says, “No, you are not going to have that opportunity.

You have a G-4 visa.”

And that’s the end of the matter.

Now, prior in September 1973, the policy was a rational policy, if you owned and occupy real estate in the State of Maryland, you could satisfy the test.

But since 1973 the test has been the domicile test despite the embellishments my adversary would like to lay upon that test from the beginning to the end in all of their briefs, they’ve said, “Domicile, it was a test, not alienage but domicile.”

By the Solicitor Attorney General Feldman’s argument was consumed in trying to convince you that Vlandis is inapplicable or Vlandis should be thrown aside.

And he did not reach another issue that we argued as he concedes not only in the District Court but in the Fourth Circuit, the equal protection issue.

We have a class of aliens here.

We think that this Court’s holding of last June in Nyquist versus Mauclet is very much in point.

I need not recite the facts of that case for you.

You will recall provisions of the New York Education Act which gave tuition grants, and scholarships, and low interest loans to American citizens, and to the people who had applied for citizenship, and to people that were willing to certify in writing that they would apply for citizenship was strapped down.

It’s the subcategory of aliens despite New York’s argument that it didn’t discriminate – it only discriminated against the heterogeneous class, despite that argument in New York this Court held a subcategory of aliens — was a suspect (Inaudible)

I think it said something along the lines that the policy in that case the New York education aid in this case the domicile — the refusal to — the implication of non-residency or non-domicile is directed at aliens only and only aliens are harmed by it.

The fact that it doesn’t cut against the whole category of aliens didn’t say that Nyquist versus Mauclet and it shouldn’t say that it — save the situation here.

Warren E. Burger:

(Inaudible)

William J. Brennan, Jr.:

Mr. Scanlan, do you think we are to certify this in the Court of Appeals of Maryland to find out whether or not G-4 immigrants can acquire domicile in Maryland?

Alfred L. Scanlan, Jr.:

No, Mr. Justice Brennan I don’t for the following reasons.

In the Court below, they asked the District Court to abstain primarily on the ground that it would also support certification.

The District Court went ahead and decided the Maryland domicile question.

The law has clearly said that policy is clear.

They said in their briefs.

We track the Maryland law of domicile.

Now, the Maryland law of domicile, Your Honors, is that — the traditional law of domicile.

It’s an intent primarily indefinite to live in Maryland.

Now, these G-4s has come on — for duration of status as long as they are employed by the bank as I’ve said in one case —

Thurgood Marshall:

But that isn’t permanent.

Alfred L. Scanlan, Jr.:

Oh, yes it’s an intent, an intent permanently and indefinitely to live with the United States and not to repair elsewhere.

Thurgood Marshall:

Well, how could it be permanent if it’s subject to be withdrawn at anytime?

Alfred L. Scanlan, Jr.:

Well, there are many times when you —

Thurgood Marshall:

How can it be permanent?

Alfred L. Scanlan, Jr.:

It can be permanent in the sense that the present time you tend to live in this place and no other place.

Thurgood Marshall:

It can be permanent because of the present time.

Permanent and present are two different words.

Alfred L. Scanlan, Jr.:

Well, in — among the category of aliens Mr. Justice Marshall, among the category of non-permanent resident aliens.

There are number of categories and many of them have to sign the fact, the visas that they have says that it have to maintain a residents abroad which they have no intention of abandonment.

Our aliens and a few others like corporate executives, in the foreign media and I believe the treaty traders, don’t have to say that.

So, they can’t have an intention to stay permanently in the United States even though if they should lose their jobs.

Thurgood Marshall:

Well, suppose the bank closes up tomorrow?

Alfred L. Scanlan, Jr.:

Well, I don’t know how likely that is but if they —

Thurgood Marshall:

(Inaudible) it permanent?

Alfred L. Scanlan, Jr.:

Well, no if – if the —

Thurgood Marshall:

If they end (Inaudible)

Alfred L. Scanlan, Jr.:

If – if – for instance —

Thurgood Marshall:

Would they end up permanent?

Alfred L. Scanlan, Jr.:

Well, if the fire occurred where I live now, I might have to move but that’s an unlikely contingency.

At the present time, I want to stay where I am and I think all of these people want to show, I’m not saying all of them are domicile.

Byron R. White:

Well, I suppose the middle level IBM executive for example that has moved 10 times in the last 10 years and expects to move 10 times more, and come to reside in Maryland for — he thinks probably as hitch there will be two years.

Alfred L. Scanlan, Jr.:

He’s domicile in Maryland.

Byron R. White:

They’ll probably going to give him an in-state tuition, aren’t they?

Alfred L. Scanlan, Jr.:

He is domicile in Maryland.

These international civil servants, Your Honor, are very much like some of our federal employees.

They come here from Idaho and Nebraska.

Some of them maintain voting residents back in Idaho and Nebraska, most of them don’t.

They come here and they live and that’s what these people do.

Now, the University says, “We’re not discriminating against aliens.

Our policy falls with equal hand on all non-domiciliaries of Maryland, citizens and aliens alike.”

Alfred L. Scanlan, Jr.:

They missed the point.

We are not complaining about domicile as the test.

What we are complaining about his that we, only we and other non-permanent aliens are excluded from taking it.

As a matter of fact, they even gave us a hearing.

I represented two of these children, of this young people appearing.

The same hearing anyone else got.

They just don’t pay attention to our evidence because we have a G-4 visa.

Domicile not alien is the test they say.

But in the end, they are excluding a suspect class who are able to show their domiciles here.

I mean the classic definition of domicile that comes into my mind is just this homes observation that the critical fact that makes – that raises a change of abode to a change of a domicile is the intention not to reside anywhere.

The effort – effort dramatically summed up the law of domicile.

Under that definition, these people can show they’re domiciles.

Potter Stewart:

The intention not to reside anywhere else (Inaudible)

Alfred L. Scanlan, Jr.:

That’s right.

The intention not to – I think it was — I’m sorry Your Honor.

In Williamson versus Osenton.

Potter Stewart:

I think that was a quotation, else.

Alfred L. Scanlan, Jr.:

Now, may I turn to a passing the equal protection point which I — let me put it this way.

If the Court is going to overturn the irrebuttable presumption doctrine or the Court is not — is going to say that somehow Vlandis is not applicable to this case, residence there, domicile here, I don’t see the difference.

But assume that the Court says, for some reason that it alludes that Vlandis is not applicable or should be overturn, the Court must still face up to the fact that Nyquist versus Mauclet says, “You can’t discriminate against a subclass of aliens” and we have a subclass of aliens.

As a matter of fact, our people probably could have passed the test in Nyquist versus Mauclet.

All they would have to do is sign a paper that when they are eligible for citizenship they would apply.

Thurgood Marshall:

But so far this record show they will never be eligible.

Alfred L. Scanlan, Jr.:

Oh no, Your Honor, when they — when they reach for —

Thurgood Marshall:

So far as this record go.

Alfred L. Scanlan, Jr.:

Well, I’m not sure about that, Your Honor —

Thurgood Marshall:

I thought that was you’re complaining about that they didn’t give a chance to make the records.

Alfred L. Scanlan, Jr.:

Oh I see.

But the — but the general record, Your Honor, or at least in the — in the arguments to this Court and to — in the briefs, I’m sorry, I confuse the records specifically and the record generally.

It — there is — it’s perfectly clear that when these men, their parents and the people in this class, when they reach retirement age at the bank then can a petition for adjustment of permanent status because at that time, in that event when they’re about to retire and they have a pension coming, they don’t have to secure a labor certification form.

Alfred L. Scanlan, Jr.:

And that brings with you a point that the University has made from the beginning, “Just change your status, that’s all you have to do, become a permanent alien.

What’s so tough about that?”

We pointed out from beginning to end what they call are imaginary road blocks.

Namely, the international organizations by treaty must give due regard in the geographical selection of the staff, the banks must give due regard for — I mean in the selection of staff, the banks must give due regard for geographical selection.

Secondly, Congress, the Congress has established the category of visa for these people.

It’s the G-4 visa.

The Congress has spoken.

It’s the Congress that said that they can stay here indefinitely as long as they’re on the job.

And then finally —

Warren E. Burger:

Well, is that any different from saying that the children or the ambassador of France can stay here as long as the father is an ambassador?

Well —

Fundamentally any different?

Alfred L. Scanlan, Jr.:

Well, the — the ambassadorial status Mr. Chief Justice is — is a different category —

Warren E. Burger:

Yes, it’s different but their both derived from treaties or convention.

Alfred L. Scanlan, Jr.:

Yes, but the — the ambassador status is like a capital office.

It’s a temporary duration.

When he fulfills his assignment, a little bit from (Inaudible) that was here for long time and probably with the exception proves the rule, but generally a high — high ranking diplomats serve for a shorter period.

They are not international civil service.

They — they have — they have much more broader diplomatic privileges, I might add on that subject Mr. Feldman refer to my client’s class as privilege to aliens.

They have functional privileges, yes.

They are exempt from income taxation from their salaries.

They would not be liable to protection in the draft.

They are exempt from alien registration.

They are entitled to be repatriated if necessary in times of international crisis and they are free from duty on their personal possessions when they first come into this country.

That’s all of the privileges they have.

These are functional privileges necessary in connection with the work of their organization.

May I turn to Vlandis —

Warren E. Burger:

But aren’t all those things is an indications of the transitory nature of the — of the — of bold or whatever term you want to picture with the — just positive ones?

Alfred L. Scanlan, Jr.:

Well, I think they’re — they — well, the functional privileges are necessary for them to perform their functions as an international civil servant, serving an international agency.

The critical thing in domicile owes is the intention.

Alfred L. Scanlan, Jr.:

Your Honor, we have a case that we didn’t cite to this Court but we did cite it to the Fourth Circuit.

It’s — well, I think it has — (Inaudible) at 296 Atlantic, second floor 31.

There was an alien of a cultural exchange program which is one of those categories, Your Honors, where you have to swear you are going to maintain a residence abroad that you have no intention of abandoning.

His status had run out but the DC Court of Appeals said, “He had the intention to be domicile in the District of Columbia for the purposes of securing divorce.”

And we have the Seren case that was relied on — I think our opponents cited and we did, where University of – of Colorado student, foreign student, an F visa, an F visa which again the recipient of that visa has to say that he has no intention of abandoning his residence.

This fellow obliged to in-state tuition out of Colorado.

His status run out and they petition for adjustment of status, the Colorado Court by properly I think said, “As long he was in that particular status where he had to maintain another domicile.

He couldn’t be a domicile in Colorado for in-state tuition status.”

But when that status expired, he could have the intention to stay.

Now, it seems to me, that this is an (Inaudible) case in the present case.

These people that I’m speaking for, many of them are Marylanders in every sense of the world.

They go to school, to church.

The only thing they do — they don’t get is then — they can’t vote in Maryland because they are not citizen and the University of Maryland —

Byron R. White:

Mr. Scanlan, can I — can I interrupt for you for a moment?

You rely on the Nyquist case rather heavily.

There of course the discrimination as against all aliens.

It was held that only particular class were the victims of an illegal but were non-constitutional discrimination, but as I remembered all aliens were denied the opportunity to get the student loans and the like, was that —

Alfred L. Scanlan, Jr.:

Oh no — oh no, Your Honor.

All aliens are allowed to do who would do two things, who are the category of being eligible for citizenship or would sign a piece of paper which said, “When they were eligible they would apply.”

No, no.

It applied to a subcategory of aliens, i.e. those who are not eligible for citizenship and would not sign the piece of paper.

In our case the subcategory is non — non-permanent aliens specifically in our case, the G-4 aliens.

I’m not saying, Your Honor, that everybody of this other — all of these other categories —

Byron R. White:

Well, but let me — let me pursue it just a moment if I may.

I have in mind the Diaz case a couple of years ago where the Court said that you don’t have to treat all aliens as citizens but you may draw a line somewhere along the — the spectrum of alien agency.

Some are close enough to being citizens that we’ll let them in and you just have to pick a line somewhere.

Now, you would not say, I take it you’re saying your people are enough like permanent residents so they ought to be treated that way but you don’t say the children of ambassadors are a little farther down the line wouldn’t have to be.

Isn’t it true that the University is entitle to draw some line and when we get real close to that line it’s going to have an appearance of arbitrariness?

Alfred L. Scanlan, Jr.:

Well, the University is — entitled to draw the line that is drawn namely domicile but it’s not entitled to —

Byron R. White:

But why isn’t it entitled to draw the line permanent resident that just the way the first paragraph where their general policy does?

Byron R. White:

Immigrant aliens lawfully admitted for permanent residents.

Alfred L. Scanlan, Jr.:

Because then they were right back in the equal protection point.

The Mathews versus Diaz written by Your Honor involved the federal power and your – and the Court speak through you Mr. Justice Stevens made it perfectly clear in that case and again in Nyquist.

The federal government can have powers of classification over aliens in subclasses of aliens that are denied in states because the federal power is also base on the foreign relations policy of this country, which is not on the business of the State much less in the University of Maryland.

Byron R. White:

That really doesn’t – that really doesn’t quite responded the question, because I think you would conceive that the university would not have to admit all aliens, say, illegal aliens or persons here on a temporary visas, you wouldn’t contend that do you?

Alfred L. Scanlan, Jr.:

No, I – I would – I would say they’ll — I would – I would concede the classes of aliens of the University would be entitled to say, “Well, on your face, you cannot show your domiciles here.

Byron R. White:

So you further —

Alfred L. Scanlan, Jr.:

Because look, their visa says you have an intention —

Byron R. White:

Well, but the constitution doesn’t – doesn’t require domicile to be the test.

You don’t say that the —

Alfred L. Scanlan, Jr.:

Oh no, I’m not saying the constitution but having, when a legislative body —

Byron R. White:

But they have not used — I used I was under misapprehension before the argument started.

The — they have not used domicile as the test.

Alfred L. Scanlan, Jr.:

Oh, that isn’t so Your Honor.

They bragged about that from the beginning.

This is a belated after thought of theirs when they realize they’re hooked between aliens and domicile.

And they want the domicile —

Byron R. White:

Well, is this general policy quoted on page 7 of the brief?

Alfred L. Scanlan, Jr.:

Yes, but the — yes, that – that is the general policy.

Byron R. White:

That doesn’t use domicile doesn’t it?

Alfred L. Scanlan, Jr.:

Your Honor — I rely on the — in fact (Inaudible) themselves speaking in answering a letter — I think it as for me, I’m – I can’t remember for sure.

In the appendix, Your Honor at page 21 (a) – sorry —

William H. Rehnquist:

If we have choose between a statement of a written general policy and a letter from Dr. Elkins is that — what is the university policy, which you think we should choose?

Alfred L. Scanlan, Jr.:

Well, I think the – the policy as stated doesn’t — maybe doesn’t spell out the fact that domicile is the key factor except that the policy contains the definition of domicile.

Byron R. White:

His letter – his letter on page 22 (a) says, “The tuition rate is determined mainly by domicile.”

Alfred L. Scanlan, Jr.:

Yes, and then he tries to fill in the cost equalization factor.

But the cost equalization factor, Your Honors – that doesn’t hold up in this case because they’ve admitted that if any of our people did change — could change their status as (Inaudible) we do, they still wouldn’t pay tax on their income but they still would be domicile in the University of Maryland.

Byron R. White:

But you would say — let me just be sure I understand your argument.

You would say that if the general policy as written applied to citizens, immigrant aliens, lawfully admitted for permanent residence and G-4 visa people then it would be constitutional?

Alfred L. Scanlan, Jr.:

No, I wouldn’t even stop there.

Alfred L. Scanlan, Jr.:

I would say that as long as a policy – here, let me put it this way, it’s a policy primarily base if not exclusively based on domicile.

There is a hearing procedure provided, everybody gets a hearing, except one category, the non-permanent immigrants including the G-4s cannot — whatever evidence they offer on the basic fact, the critical fact that the hearings all about, i.e. are you domiciled in Maryland?We can’t a proof means nothing no mater – no matter how close that ties to Maryland that were able to demonstrate in a particular case, that what we are complaining about, that’s unfair.

It seems to us that’s analogous of – it implicates procedural due process.

The fact that they could have had a different policy but did it in a different way, it didn’t involve making a fact critical and then having a procedural shortcut for the determination of that class.

Byron R. White:

Why wouldn’t it been equally unfair to the Nicaraguan ambassador?

Alfred L. Scanlan, Jr.:

Oh you mean the (Inaudible) been here a long time?

Byron R. White:

Yes.

Alfred L. Scanlan, Jr.:

Well, I – I — let me put it this way.

An ambassador — the ambassadorial class, the diplomatic class, their privileges and their – their presence in this country is based on two theories, the representative theory and the extraterritoriality theory.

One, they represent the sovereign, their sovereign Nicaragua or two, they are an extension of Nicaraguan territory.

Thurgood Marshall:

Including their car?

Alfred L. Scanlan, Jr.:

Including their car.

I would say that —

Thurgood Marshall:

As they (Voice Overlap)–

Alfred L. Scanlan, Jr.:

They are — they are obviously — pardon.

Thurgood Marshall:

As they run into my car.

Alfred L. Scanlan, Jr.:

Oh, yes, they –- they are immune.

Now —

Thurgood Marshall:

Well, do I get territorial too?

Alfred L. Scanlan, Jr.:

But if one of – one of these plaintiffs, I mean one of these respondents of their fathers, of their mothers hit anybody with the –- their car in Maryland or driving anywhere else, and they were liable, they would pay.

They — they don’t have that — they don’t have any diplomatic immunity.

They are at different category.

Byron R. White:

But you’re saying there’s a constitutional difference between diplomatic immunity for tort liability and bank employee immunity protects liability, the Maryland can’t draw the line right there.

Alfred L. Scanlan, Jr.:

Well yes I am, I am saying that.

William H. Rehnquist:

When you have these hearings Mr. Scanlan, what section of the general policy is it that you offered evidence on that you can comply with?

Alfred L. Scanlan, Jr.:

Well —

William H. Rehnquist:

The general policy on page 7 of petitioner’s brief.

Alfred L. Scanlan, Jr.:

We – we offered evidence about car registrations.

William H. Rehnquist:

Well I — I don’t mean —

Alfred L. Scanlan, Jr.:

The criteria that they – we try — we couldn’t obviously satisfy the voting right there.

William H. Rehnquist:

You – you — well, yeah, you couldn’t satisfy the criterion that they were immigrant, aliens lawfully admitted for permanent residence (Inaudible)

Alfred L. Scanlan, Jr.:

That’s correct, but we offered evidence on the other criteria, they still gave us a hearing even though it was catch 22 situation, of course.

We could have a hearing to doomsday but it would be meaningless.

William H. Rehnquist:

Well, that’s like – that’s like saying that if a taxi driver statute that requires a minimum age of 21, your – you – your client is 18 you are going for a hearing and they don’t listen to his evidence of disqualification because they find out he is not 21.

Alfred L. Scanlan, Jr.:

Well, it is also like the hearing in Stanley where — I mean not the hearing in Stanley, the Burson versus Bell where there was a pre-suspension of licence hearing but that hearing was meaningless in the case of a non-insured driver.

And the Court held — having made the fact of liability critical in that case, it was unfair, violated due process and call it an irrebuttable or conclusive presumption if you will and that was wrong.

I’m not saying -– I’m not saying there are many, many cases.

It’s only in the case where the conclusive presumption is apparent in Vlandis on the face of the statute and here in the (Inaudible) administration of the policy by the University, where there is apparent on the face in that case, yes.

I’m not urging that the Court go fair it out irrebuttable presumptions.

That would be indeed a substantive of interference masquerading in – in a procedural dress.

But -– and I’m not -– I’m not urging it where the cost of individual determinations would be prohibited or costly.

That isn’t the case here.

They already have the areas.

We already talking about — small class 53 children of the University of Maryland, 53.

That 500 figure obviously involves student visa people who have to maintain a residence that they have no intention of abandoning.

And I’m not saying we should have irrebuttable presumptions that are wrong when there is no other better alternative way to determine the matter.

I think it’s perfectly valid to have age classifications for driving license, voting rights, and drinking rights, and may be the bar examinations for testing lawyers.

And I’m not saying that we should have irrebuttable presumptions where that wouldn’t be any better qualify — a better qualify method to determine the ultimate fact like Your Honor you mentioned in Salfi.

The marital intent and the life expectancy and knowledge of term and illness were all on certain speculative matters perhaps no better determined in an individual hearing than by an irrebuttable presumption.

But leaving those situations aside, I say that Vlandis type of irrebuttable presumption is proper.

I say we come four square within Vlandis but if we – and I – if – if the Court is going to (Inaudible) Vlandis that’s another matter.

I don’t think they should.

I think the irrebuttable presumption contrary to the charge made about our analysis of it.

It is not dishonest, it’s a principle constitutional analysis that has applicability and can reconcile the cases that this Court has decided.

But finally, after all about Vlandis, whether Vlandis controls, doesn’t control or is to be overruled.

I say Nyquist versus Mauclet controls and the alienist problem is in this case has been in from the beginning we are entitled to raise it here and have raised it here.

I thank you.

Thurgood Marshall:

Mr. Scanlan one question on the interpretation of Maryland law, do we have to do that?

Alfred L. Scanlan, Jr.:

No, Your Honor, we have — let me answer that.

Thurgood Marshall:

Well —

Alfred L. Scanlan, Jr.:

The District Court —

Thurgood Marshall:

No, I mean by what reason do we just accept the District Court?

Alfred L. Scanlan, Jr.:

Well, by the same reason you accepted the —

Thurgood Marshall:

It’s not a state law.

Alfred L. Scanlan, Jr.:

Well, this Court held in Bishop verus Wood and where you had a District Court interpretation in a district where he was familiar with the – with the law and that interpretation affirm by the Circuit Court there by divided court.

We have here an interpretation by a District Court judge on a matter of Maryland law which seems clear on its face the domicile test and we have that affirmed by the Second Circuit.

I say the same reason you gave —

Thurgood Marshall:

By the Fourth Circuit.

Fourth Circuit, I’m sorry, the same reason you assigned to Bishop v. Wood apply the special force here because the Fourth Circuit was not divided.

Thank you.

Warren E. Burger:

Thank you gentlemen the case is submitted.