2013 VT 30


Adam Michael Roberts v.
University of Vermont and State Agricultural College (2012-206)
 
2013 VT 30
 
[Filed 10-May-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 

2013 VT 30

 

No. 2012-206

 

Adam Michael Roberts


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


University of Vermont and State
  Agriculture College


November Term, 2012


 


 


 


 


Geoffrey
  W. Crawford,, J.


 

Richard W. Kozlowski of Lisman Leckerling, P.C., Burlington, for Plaintiff-Appellant/
  Cross-Appellee.
 
Jeffrey J. Nolan and Angela R. Clark of Dinse,
Knapp & McAndrew, P.C., Burlington, for
  Defendant-Appellee/Cross-Appellant.
 
 
PRESENT:  Reiber, C.J., Skoglund,
Burgess and Robinson, JJ., and Eaton, Supr. J., 
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.  Plaintiff appeals from a superior court order
affirming the University of Vermont’s denial of his application for in-state
tuition status.  He raises a host of challenges to the court’s ruling,
arguing primarily that it was inconsistent with the court’s
 finding that plaintiff was domiciled in Vermont.  We affirm.
¶ 2.            
In 2007, plaintiff moved to Vermont to enroll as an undergraduate at the
University of Vermont (hereafter “University” or “UVM”).  He paid the
out-of-state tuition rate through the first three years of his undergraduate
studies, and first applied for in-state tuition status in June 2010.  In
his application he stated that, although he first came to Vermont to attend
UVM, he chose to permanently relocate to Vermont because he loved the area and
intended to reside in Burlington after graduating.   
¶ 3.            
UVM denied the application, citing several pertinent provisions of UVM’s
In-State Status Regulations.  Regulation 1 defines “domicile” as “a person’s
true, fixed, and permanent home,” and states that “[i]t
is the place at which one intends to remain indefinitely and to which one
intends to return when absent.”  Regulation 3 states that a residence
“established for the purpose of attending UVM shall not by itself constitute
domicile.”    Regulation 4 builds on that, stating, “[a]n
applicant becoming a student within one year of first moving to the state shall
have created a rebuttable presumption that residency in Vermont is for the
purpose of attending UVM and/or acquiring in-state status for tuition
purposes.”  And Regulation 7 provides that “[r]eceipt
of financial support by a student from his/her family shall create a rebuttable
presumption that the student’s domicile is with his/her family, regardless of
whether the student has reached the age of 18.”    
¶ 4.            
In his administrative appeal, plaintiff reiterated that he came to UVM
because of the reputation of its pre-medical program and medical school, and he
explained that during his freshman year he was accepted into a premedical
program that leads to automatic acceptance to UVM medical school for students
who complete the program.  Plaintiff also explained that, although he
needed only one more course to complete his graduation requirements, he was
seeking in-state tuition status to enable him to take additional electives in
the fall of 2010 and spring of 2011 to become “a more diversified medical
school applicant.”  UVM denied his administrative appeal.    
¶ 5.            
In November and December 2010—the fall of his senior year—plaintiff
applied to UVM medical school for the following academic year.  Plaintiff
submitted another application for in-state status in December 2010, this time
in connection with courses he hoped to take in the spring of 2011.  UVM
denied that application for substantially the same reasons as the first
application.  Plaintiff did not enroll in courses in the spring.
¶ 6.            
Plaintiff submitted a third application in March 2011, indicating that it
was for the purpose of taking one or two summer courses.  In that
application, plaintiff stated that, while he originally came to Vermont to
attend UVM, his reason for permanently moving to Vermont was to work at the
Burlington airport for Comair.  Plaintiff also indicated that he received
no financial support from his family and that he would be closing on the
purchase of a house in Burlington in May 2011.  Plaintiff was not at that
time taking courses at UVM, but in April 2011 was accepted to begin medical
school at the UVM College of Medicine (COM) in the fall of 2011.  The UVM
residency officer denied plaintiff’s third application, and plaintiff filed an
administrative appeal.  
¶ 7.            
UVM’s residency appellate officer upheld the residency officer’s
conclusion.  The officer explained that, notwithstanding the various steps
plaintiff had taken to demonstrate domicile in Vermont, given his
acknowledgment that he came to Vermont on account of UVM’s pre-medical program
and medical school, his application to UVM COM in the fall of 2010, and the
fact that he would be enrolling at UVM COM in the fall of 2011—less than a year
from his completion of undergraduate studies at UVM—he had failed to rebut the
presumption in Regulations 3 and 4 that he came to Vermont, and stayed in
Vermont, for an educational purpose.  The appellate officer also concluded
that because plaintiff’s father had provided him with some financial support
and was listed as a co-purchaser of the Burlington house plaintiff was purchasing,
the presumption in Regulation 7 that a student who receives financial support
from family is domiciled with family also applied.  
¶ 8.            
In connection with his enrollment at UVM COM in August 2011, plaintiff
submitted his fourth application for in-state status.  In his application,
plaintiff asserted that Vermont was his permanent home, citing his part-time
employment at the Burlington International Airport and payment of state income
tax, banking and financial relationships in Vermont, his Vermont driver’s
license and voter registration, and his purchase of a home in Burlington. 
Plaintiff also claimed that he had been financially independent of his parents
since the summer of 2010, and argued that he had no substantial connection to any
other state.   UVM’s residency officer denied the application, and
plaintiff filed an administrative appeal.    
¶ 9.            
UVM’s appellate residency officer issued a decision in October 2011,
finding that plaintiff had not established by “clear and convincing evidence
that [he] qualifi[ed] for
in-state tuition.”  The officer explained that “[c]ommon-law
domicile is itself not sufficient to establish eligibility for in-state tuition
status at the University of Vermont.”  Implicitly acknowledging plaintiff’s
repeated statements that he intended to make Vermont his permanent home without
regard to whether he was accepted at UVM COM, the officer observed: “[S]tatements from you . . .
with regard to any future plans and intention related to Vermont domicile are
not conclusive, and we must accept them with considerable reserve.  Such
declarations have little weight when they conflict with actual facts which are
of greater evidential value.”   
¶ 10.         Reviewing
the record, the appellate officer cited plaintiff’s own acknowledgment in an
earlier application that he came to Vermont with the plan and intent to attend
UVM as an undergraduate and then enter UVM COM; the fact that plaintiff sought
to take additional electives after completing his undergraduate requirements
for the purpose of becoming “a more diversified medical school applicant;” and
the fact that in April 2011 plaintiff was accepted and enrolled in classes for
the fall 2011 semester at the medical school, less than one year after
completing his undergraduate studies.  While acknowledging that plaintiff
had taken certain “steps to establish domicile,” in light of the facts cited
above, the appellate officer found that plaintiff had “displayed a clear
educational intent and purpose in coming here and for staying in Vermont” and
had not rebutted the presumptions in Regulations 3 and 4, and thus did not
qualify for in-state status for tuition purposes.  
¶ 11.         The
officer further found that, while plaintiff asserted that he was financially
independent of his parents, the evidence was insufficient to substantiate the
claim.  In this regard, the officer noted that plaintiff had acknowledged
the receipt of financial support from his father in a previous application;
that plaintiff’s education trust fund had increased in the past year from $3000
to $50,000 with no indication as to the source of the funds; that plaintiff’s
father was listed as a co-purchaser on the contract of sale and co-borrower on
the loan for the purchase of plaintiff’s $330,000 Burlington residence; and
that plaintiff’s stated annual income for the past two years of between $13,000
and $15,000 was insufficient to fund the home purchase and trust fund, not to
mention the costs of plaintiff’s education.[1]  Accordingly, the officer found that
the Regulation 7 presumption of domicile with plaintiff’s family also applied.
 
¶ 12.         Plaintiff
appealed the University’s decision denying his fourth application to the
superior court, pursuant to Vermont Rule of Civil Procedure 75.  UVM filed
a motion to dismiss or, in the alternative, for partial summary judgment. 
Plaintiff filed a response, and the court thereafter issued a written ruling on
the merits upholding the University’s decision.  The court concluded that
the University had misapplied Regulation 4, and that the presumption reflected
in that provision did not apply because plaintiff had lived in Vermont for more
than one year prior to applying to UVM COM.  The court further concluded
that there was no support in the record for the appellate
officer’s determination plaintiff had not rebutted the presumption reflected in
Regulation 7.  The court concluded that plaintiff had “established
a domicile in Vermont,” but nevertheless found that it was for the purpose of
attending UVM, so that plaintiff was not entitled to in-state tuition
status.  
¶ 13.         Plaintiff
has appealed from the court’s decision denying his application, and the
University has cross-appealed the court’s construction and application of
Regulations 4 and 7.  
¶ 14.         In
this Rule 75 appeal, the trial court’s review of UVM’s decision was restricted
to the administrative record to determine whether there was “any competent
evidence” to support the University’s findings, Ketchum v. Town of Dorset,
2011 VT 49, ¶ 14, 190 Vt. 507, 22 A.3d 500 (mem.)
(quotation omitted), while the court exercised
independent review of any substantial questions of law affecting the merits.
 Molesworth v. Univ. of Vt., 147 Vt. 4, 7, 508 A.2d 722, 723 (1986). 
On appeal to this Court, we consider the case “under the same standard as
applied in the intermediate appeal,” upholding the University’s findings
“unless clearly erroneous.”  Tarrant v. Dep’t of
Taxes, 169 Vt. 189, 195, 733 A.2d 733, 738 (1999).  Although
conclusions of law, as noted, “are not so protected,” we “do accord deference”
to the interpretation of statutes and rules by the agency charged with their
execution.  Id.  
¶ 15.         We
review the University’s decision in light of the applicable statutory and
regulatory scheme.  The Legislature has provided for reduced tuition
charges for certain students in order “to provide greater educational
opportunities for the youth of Vermont.”  16 V.S.A. § 2282(a).  To that end, the Legislature
authorized the trustees of UVM to define eligibility for reduced tuition
charges, and directed that the definition include, without limitation, the
following: 
  (1) reasonable durational domicile requirements;
 
(2) provision that a residence established for the
purpose of attending an education institution by either the person seeking
reduced tuition or another shall not by itself constitute residence for the
purposes of this section;
 
 
(3) requirement of such other indicia of permanent
residence as said trustees shall deem proper.
 
Id. § 2282(c); see
also id. § 2282a(a) (“Enrollment at an institution for higher
learning, or presence within the state for the purposes of attending an
institution of higher learning, shall not by itself constitute residence for
in-state tuition purposes.”).[2] 
In accordance with this directive, UVM adopted regulations governing
eligibility for in-state tuition status, including those set forth above.[3]  Supra,
¶ 3.
¶ 16.         UVM’s
regulations for determining eligibility for in-state tuition status are not
synonymous with common-law domicile.  As we have previously explained:
[D]omicile is . . . a place
where a person lives or has his home, to which, when absent, [the person]
intends to return and from which [he or she] has no present purpose to
depart.  To change domicile, there must be a relocation
to the new residence and continued dwelling there, coupled with an intention of
remaining there indefinitely; neither physical presence alone nor intention
alone is sufficient to effectuate a change of domicile.  
 
Conley v. Crisafulli,
2010 VT 38, ¶ 6, 188 Vt. 11, 999 A.2d 677 (citation omitted).  
¶ 17.         By
contrast, pursuant to the Legislature’s express directive, UVM’s regulations
require that “a student must reside in Vermont continuously for one year prior
to the semester for which in-state status is sought.”  UVM
In-State Status Regulations, Regulation 2.  This regulation applies
even if a student is domiciled in Vermont pursuant to the common law
understanding from his first day.  Moreover, UVM’s regulations establish a
host of presumptions and criteria that do not ordinarily apply in a common-law
determination of domicile.  In addition, the standard of proof for
establishing eligibility for in-state status is higher than the usual standard
for proving domicile.  See UVM In-State Status Regulations, Regulation 10
(requiring that student seeking in-state status establish eligibility by clear
and convincing evidence); see also Huddleston v. Univ. of Vt., 168 Vt.
249, 254, 719 A.2d 415, 419 (1998) (upholding University’s authority to adopt
clear and convincing standard in connection with in-state tuition eligibility
cases).  To the extent that UVM’s regulations use the term “domicile,” we
understand that term within the context of its regulatory scheme rather than as
common-law domicile.  
¶ 18.         With
that in mind, we consider plaintiff’s arguments.  Plaintiff first asserts
that the trial court found “that [plaintiff] ha[d] established a domicile in
Vermont.”  This finding, plaintiff argues, is determinative of his
eligibility for in-state tuition status.  Moreover, the trial court
mistakenly applied an amended version of Regulation 3 which, plaintiff argues,
was not only inapplicable, but unreasonable, inconsistent with enabling
legislation, and unconstitutional under Chapter I, Article 7 of the Vermont
Constitution and the Fourteenth Amendment of the United States
Constitution.  
¶ 19.         In
light of the review standards summarized above, we conclude that plaintiff’s
reliance on the superior court’s “finding” is misplaced.  For our purposes
here, the critical findings are those of the University, not the trial
court.  UVM was the adjudicator of the facts in this matter, and the
record is clear that it employed the original version of Regulation 3, which
both parties agree governed plaintiff’s application.[4]  Moreover, UVM made no finding as to
plaintiff’s common-law domicile, but rather concluded on the basis of its
review of the record that plaintiff did not establish by clear and convincing
evidence that he was eligible for in-state tuition.
¶ 20.         The
record contains ample competent evidence to support the University’s
determination.  While UVM acknowledged that plaintiff had taken certain
steps to establish domicile, the University found under Regulation 3 that
plaintiff had “displayed a clear educational intent and purpose in coming here and
for staying in Vermont.”  The University cited as persuasive in this
regard plaintiff’s admission in an earlier application for in-state status that
he came to Vermont with the plan and intent not only to obtain an undergraduate
degree, but thereafter to attend UVM COM, as well as the fact that he applied
to the medical school while still enrolled as a undergraduate, and enrolled as
a medical student within one year after completing his undergraduate coursework. 
These facts are sufficient to support the University’s conclusion.  See Spielberg
v. Bd. of Regents, 601 F. Supp. 994, 1000-01 (E.D. Mich. 1985) (holding
that student who had obtained state driver’s license, registered to vote, paid
state taxes, and opened local bank account failed to overcome presumption that
one who comes for purpose of attending university was ineligible for in-state
tuition); Michelson v. Cox,  476 F. Supp. 1315, 1320-21 (S.D. Iowa
1979) (upholding university’s denial of in-state tuition, based on presumption
that student was in state for education purposes, despite evidence that he had
registered to vote, obtained state driver’s license, and paid local property
taxes); Smith v. Bd. of Regents, 874 S.W.2d 706, 710 (Tex. App. 1994)
(upholding university’s finding that, despite evidence of student’s in-state
driver’s license, voter registration, and employment, she had not rebutted
presumption that she was not state resident because she came for purpose of
attending university).  
¶ 21.         In
addition, the University relied on Regulation 7, which provides that the “[r]eceipt of financial support by a student” from his or her
family creates a rebuttable presumption that the student’s domicile is with his
or her family.  Although plaintiff claimed that he was financially
independent, the University was unpersuaded, noting that he had acknowledged
the receipt of financial support in a previous application for in-state status;
that plaintiff’s educational trust fund had increased during the previous year
from $3000 to $50,000 with no indication as to the source of the funds; that
plaintiff’s father was listed as the co-purchaser on the contract of sale and
co-borrower on the loan for the purchase of plaintiff’s residence; and that
plaintiff’s annual income for the past two years of approximately $13,000 to
$15,000 was insufficient to fund the home purchase, trust fund, and education
costs.  We cannot say that the University’s conclusion that the
presumption in Regulation 7 applied was unsupported by its findings or the
underlying evidence.  Moreover, in light of the above evidence regarding
plaintiff’s educational intent in coming to and remaining in Vermont, we cannot
conclude that plaintiff rebutted this presumption as a matter of law and do not
endorse the trial court’s conclusion that there was “simply no support” for
UVM’s finding concerning Regulation 7.  See Ketchum, 2011 VT 49,
¶ 18 (rejecting plaintiffs’ claim that “their opinions and evidence should
have been weighed more heavily” by the local agency, and upholding its
resolution of “the competing considerations”).  
¶ 22.         We
recognize that much of the evidence presented by plaintiff is consistent with an intent to remain in Vermont beyond his schooling, but we
cannot conclude that, as a matter of law, that evidence demonstrates
satisfaction of the requirements for in-state tuition by clear and convincing
evidence.  Many of plaintiff’s actions are typical of students in
general—those who intend to remain in Vermont, and those who do not.  As a
federal district court explained in evaluating the University of Iowa’s
determinations regarding eligibility for in-state tuition:
To
accept plaintiff's argument would require the University to reclassify as a
resident every student who, after attending the University for a year, makes a
self-serving declaration that he intends to reside in Iowa permanently and
performs a series of “objective” acts, some of which are required by law and
all of which are customarily done by some nonresident students who do not
intend to remain in Iowa after graduation.  This would, in effect, create
a presumption that any such student is a bona fide Iowa resident, thus
seriously jeopardizing the University's nonresident tuition program and
consequently its entire financial structure.
 
Michelson, 476 F. Supp. at
1320 (original emphasis); see also Spielberg, 601 F. Supp. at 1000-01
(“[A]ll of these indicia of domiciliary intent are
readily established by students having no intention to remain in Michigan
beyond graduation. . . . While it is true that the evidence
plaintiff offered is consistent with an intent to
remain in Michigan, it is equally consistent with an intent to leave Michigan
upon graduation.”).
¶ 23.         We
understand that the burden on a student who comes to Vermont to attend school
and then, during the course of schooling, becomes a Vermont domiciliary and
seeks in-state tuition status is a heavy one.  But, as we have previously
concluded: “It is wholly consistent with
the purpose of the statute for UVM to erect significant barriers to
establishing in-state residency, in view of the Legislature’s twice-expressed
concern that Vermont residency alone should not automatically confer in-state
status.  The hurdle to in-state tuition is high in order to effectuate the
purpose of the statute, which
is to provide greater educational opportunities to the youth of Vermont at the
state university.”  Huddleston, 168 Vt. at 254, 719 A.2d at 418-19;
see also Vlandis v. Kline, 412
U.S. 441, 453-54 (1973) (recognizing a state’s authority to establish
“reasonable criteria” to ensure students “who have come there solely for
educational purposes, cannot take advantage of the in-state rates”); Michelson, 476 F. Supp. at 1320
(“It is true that students who do intend to make Iowa their home may not be
able to overcome the presumption of nonresidence, but
it does not appear possible to draft a regulation that would preserve an
effective nonresident tuition scheme without injustice to some individuals.
 Rules that apply to all are rarely, if ever, without anomalies.”). 
¶ 24.         For
the above reasons, we affirm the trial court’s affirmance
of the University’s conclusion that plaintiff did not qualify for in-state
tuition status.[5] 

¶ 25.         We
briefly address the University’s cross-appeal.  To the extent the
University challenges the trial court’s conclusion that, as a matter of law,
plaintiff overcame the presumption in Regulation 7 that he was domiciled with
his family, our analysis above supports the University’s position.
¶ 26.         We
likewise reject the trial court’s analysis of Regulation 4.  That
regulation provides that “[a]n applicant becoming a student within one year of
first moving to the state” creates a rebuttable presumption that “residency in
Vermont is for the purpose of attending UVM and/or acquiring in-state status
for tuition purposes.”  The trial court found that the rule had “no
application” because plaintiff had lived in Vermont for more than one year
before applying to UVM’s medical school.  As the University correctly
notes, however, the one-year period is plainly measured from plaintiff’s “first
moving” to Vermont,” not from his “applying” to the medical school, and therefore
applied in this case.  The court was concerned that Regulation 4 could
“create a permanent obstacle” to anyone whose initial move to Vermont was for
the purpose of attending UMV.  The presumption is expressly rebuttable,
however, and nothing in this record suggests that an applicant who is found to
have presented sufficient evidence to rebut the presumption would be similarly
denied.  
Affirmed. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 Although the administrative officer described the residence as a
“$330,000 home,” the record shows that the mortgage loan secured by plaintiff
and his father was for $332,800, but the purchase price of the home was
actually $416,000, including a $20,000 deposit.     


[2]
 The terms “residence” and “residency” are often used to describe two very
different concepts.  “Residence” sometimes refers to the place where
someone lives, and connotes physically dwelling in Vermont.  On the other
hand, “residency,” and “Vermont resident” are sometimes used as legal
conclusions: the terms signify that a person qualifies for in-state status with
respect to a particular state benefit or responsibility.  See, e.g., Conley
v. Crisafulli, 2010 VT 38, ¶ 5, 188 Vt. 11,
999 A.2d 677 (“Residency, for purposes of divorce jurisdiction, is more than
mere presence within the state.”); Huddleston v. Univ. of Vt., 168 Vt.
249, 253-54, 719 A.2d 415, 419 (1998) (using “residence” and “residency” to mean
eligibility for in-state tuition status).  Wherever possible, we avoid use
of these terms to avoid confusion.  
 


[3]
 The day before rejecting plaintiff’s fourth application, UVM amended its
regulations.  UVM applied the pre-amendment version of its regulations,
quoted above, in reviewing and denying plaintiff’s application, and we likewise
use the language of that version of the regulations in considering this appeal.


[4]
 For this reason, we do not reach plaintiff’s various arguments that
Regulation 3, as amended, is inapplicable, exceeds UVM’s statutory authority,
or violates state and federal constitutions.


[5]  Plaintiff
asserts that he was not given a sufficient chance to brief the merits of the
case before the trial court issued its ruling.  Because we are effectively
reviewing the University’s findings and legal conclusions, rather than the
trial court’s, and because plaintiff has had the opportunity to fully brief its
arguments for this Court, any error in the trial court’s process was harmless.



