LOCATION:Virginia Judicial Inquiry and Review Commission
DOCKET NO.: 77-154
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 435 US 647 (1978)
ARGUED: Feb 22, 1978
DECIDED: Apr 19, 1978
Alfred L. Scanlan, Jr. – for respondents
David H. Feldman – for petitioner
Media for Elkins v. Moreno
Audio Transcription for Opinion Announcement – April 19, 1978 in Elkins v. Moreno
Warren E. Burger:
The judgment and opinion of the Court in Elkins, President of the University of Maryland against Moreno will be announced by Mr. Justice Brennan.
William J. Brennan, Jr.:
This case is here from the Court of Appeals for the Fourth Circuit.
The respondents in the case are students of the University of Maryland. Each is an Alien, Alien dependent on a parent living in Maryland, who is also not a citizen of the United States, but as an employee of an international Bank, holds a non-immigrant visa granted by the Federal government to employees of an international organizations.
The University of Maryland drafts more favorable terms as to tuition and other charges to students who have what the university’s policy statement calls in-state status.
A prime condition of that status is that the parent of the student although living in Maryland, must also be domiciled in Maryland.
And the university denied respondents in-state status on the ground that as the university understood Maryland Law, a holder of an immigrant visa of the kind held by his parents cannot acquire the intent requisite to domicile, that is intent to reside permanently in the State of Maryland.
But there is no controlling decision of a Maryland Court that supports the university’s view of Maryland Law, and the university admitted at oral argument in this Court, that it is entirely possible that the university would accord these respondent students in-state status, if the Maryland courts held that they, the students and their parents can, under Maryland Law, acquire a Maryland domicile.
In that circumstance and following our usual practice not to decide federal constitutional questions that do not have to be decided, we have decided to avail ourselves of a provision of a Maryland statute, that authorizes the Maryland Court of Appeals, Maryland’s highest court, to answer questions of Maryland Law certified to that court by this Court.
Accordingly, the following question is certified to the Court of Appeals of Maryland.
All persons residing in Maryland who hold or are named in a visa under 8 United States Code, Section 1101 (a) 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 in Maryland.
Mr. Justice Rehnquist joined by the Chief Justice dissents and has filed a dissenting opinion.
Warren E. Burger:
Thank you, Mr. Justice Brennan.