NOT DESIGNATED FOR PUBLICATION
No. 122,541
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MALLORY N. REITZ,
Appellant,
v.
THE UNIVERSITY OF KANSAS,
RESIDENCY APPEALS COMMITTEE,
Appellee.
MEMORANDUM OPINION
Appeal from Douglas District Court; MARK A. SIMPSON, judge. Opinion filed November 20,
2020. Affirmed.
Christopher M. Reitz, of Overland Park, for appellant.
Eric J. Aufdengarten, associate general counsel, of the University of Kansas, for appellee.
Before GARDNER, P.J., BUSER and BRUNS, JJ.
PER CURIAM: Mallory N. Reitz appeals a decision by the Douglas County District
Court affirming the University of Kansas Residency Appeals Committee's denial of her
application for resident classification at the University of Kansas. On appeal, Reitz
contends that the Appeals Committee's determination was not supported by substantial
competent evidence. She also contends that its determination was unreasonable, arbitrary,
or capricious. In addition, Reitz contends that the district court conducted an improper
review of the Appeals Committee's determination. After reviewing the record, we find no
reversible error. Thus, we affirm the district court's decision.
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FACTS
Reitz was born in Kansas in 1998 and continued to live here until 2010. In 2010,
she moved with her parents to Mississippi and then moved to Illinois the following year.
After graduating from high school in Illinois, she became a student at Illinois Central
College in August 2015. At Illinois Central, Reitz was classified as a resident of the State
of Illinois. The following year, she transferred to the University of Kansas (KU) as a non-
resident student. Since transferring to KU, Reitz has remained continuously enrolled as a
full-time student.
On December 15, 2017, Reitz' parents moved back to Kansas. It is unclear from
the record whether Reitz ever moved into her parents' home after they returned to Kansas
or simply visited their home on occasion. However, she does list her parents' home as her
permanent address. Although Reitz' parents contribute to her tuition and other
educational expenses at KU, they do not claim her as a dependent for tax purposes. Reitz
is also the recipient of a KU Midwest Exchange Scholarship. This scholarship is awarded
to qualified out-of-state transfer students from certain states, including the State of
Illinois.
On February 21, 2019, Reitz submitted an application to KU in which she asked to
be reclassified as a resident of the State of Kansas. In her application, Reitz was asked:
"Why did you come/return to Kansas?" and she responded "To attend K.U. Parents
moved back for jobs." Further, it is undisputed that she physically moved back to Kansas
when she transferred from Illinois Central College to KU in 2016. It is also undisputed
that her parents did not move back to Kansas until more than a year after she started
attending classes at KU.
In her application, Reitz supported her request for resident classification by
pointing significant family connections to both KU and the State of Kansas. She also
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reported that she has a Kansas driver's license and a Kansas hunting license. Additionally,
she reported that her car is registered in Kansas, that she leases a residence in Kansas, and
that she lives full time in Kansas. Moreover, Reitz stated that she had no connections to
any other state and intended to remain in Kansas after her graduation.
With her application, Reitz included various financial information. This
information included her 2018 Kansas income tax return, which listed her as a student
and reported her to have an adjusted gross income to be $2,979.00. At the time she
submitted her application for resident classification, Reitz was working for Kansas
Athletics.
On March 11, 2019, the KU Registrar denied Reitz' application for resident
tuition. She timely appealed the Registrar's denial of her application to the KU Residency
Appeals Committee. On March 27, 2019, the Appeals Committee held a hearing to
consider Reitz' appeal. The hearing was neither recorded nor transcribed. Instead, the
record of the hearing consists of a one-page unsigned document entitled, "Residency
Appeal Public Vote." The only named listed on the document is "Mallory Reitz," and it is
undisputed that she was not represented by counsel at the hearing.
According to the record, the Appeals Committee denied Reitz' appeal on a 4-0
vote. A box is checked off on the pre-printed form that states: "The student has not
demonstrated that the student is residing in Kansas for a purpose other than educational."
It appears that Reitz was notified regarding the denial of her appeal in a letter signed by
the Chair of the Appeals Committee. The letter stated that Reitz' appeal was denied on
the same ground as stated on the form.
On April 25, 2019, Reitz filed a petition for judicial review in the Douglas County
District Court. Before the district court, Reitz was represented by legal counsel. The
parties submitted briefs to the district court regarding their respective positions and
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agreed that no oral argument was necessary. On February 5, 2020, the district court
issued a Memorandum Decision denying Reitz' petition for relief and affirming the
Appeals Committee's determination. Thereafter, Reitz timely appealed the district court's
decision.
ANALYSIS
Issues Presented and Standard of Review
On appeal, Reitz presents three issues. First, whether the KU Residency Appeals
Committee acted unreasonably, arbitrarily, or capriciously. Second, whether the KU
Appeals Residency Appeals Committee's determination is supported by substantial
competent evidence. Third, whether the district court applied the appropriate standard of
review in affirming the Committee's action. KU set forth the same issues but in a
different order.
As the parties recognize, the determination by the KU Residency Appeals
Committee constitutes a final action subject to review under the Kansas Judicial Review
Act (KJRA), K.S.A. 77-601 et seq. Under the KJRA, we are to review the record in order
to determine whether the Appeals Committee acted within the scope of its authority,
whether its determination was substantially supported by evidence, or whether the
decision was fraudulent, arbitrary, or capricious. See Friends of Bethany Place v. City of
Topeka, 297 Kan. 1112, 1129, 307 P.3d 1255 (2013). On appeal, the burden of proving
the invalidity of the final action taken by the KU Appeals Committee rests with Reitz.
K.S.A. 77-621(a)(1); Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 953, 335 P.3d
1178 (2014).
If an issue presented on appeal turns on an interpretation of a statute or regulation,
our review is unlimited. Redd v. Kansas Truck Center, 291 Kan. 176, 187-88, 239 P.3d
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66 (2010). On the other hand, we review factual findings to determine whether they are
supported by substantial evidence in light of the record as a whole. K.S.A. 77-621(c)(7);
Sierra Club v. Moser, 298 Kan. 22, 62-63, 310 P.3d 360 (2013). In making this
determination, we must review evidence both that supports and detracts from the Appeals
Committee's findings. K.S.A. 77-621(d). "Substantial evidence is such legal and relevant
evidence as a reasonable person might accept as sufficient to support a conclusion."
Owen Lumber Co. v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007). In reviewing
the evidence in the record, we are not to reweigh or engage in de novo review of the
evidence presented below. Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d
1057 (2014).
"An agency action is arbitrary or capricious if it is unreasonable or without
foundation in fact." Wright v. Kansas State Board of Education, 46 Kan. App. 2d 1046,
1059, 268 P.3d 1231 (2012); see Pork Motel, Corp. v. Kansas Department of Health and
Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). Factors that may be considered
in determining the reasonableness of a decision include: (1) whether the agency relied on
factors that the Legislature had not intended it to consider; (2) whether the agency
entirely failed to consider an important aspect of the problem; (3) whether the agency's
explanation of its action runs counter to the evidence before it; and (4) whether the
agency's explanation is so implausible that it could not be ascribed to a difference in view
or the product of agency expertise. Wheatland Electric Cooperative v. Polansky, 46 Kan.
App. 2d 746, 757, 265 P.3d 1194 (2011), citing Motor Vehicle Mfrs. Assn. v. State Farm
Mut., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). Ultimately, under the
KJRA, we consider this appeal from the district court as if the petition for review of the
Appeals Committee's decision had been originally filed with us. See In re Tax Appeal of
Fleet, 293 Kan. 768, 776, 272 P.3d 583 (2012); Carlson Auction Service, Inc. v. Kansas
Corporation Comm'n, 55 Kan. App. 2d 345, 349, 413 P.3d 448 (2018).
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Determination Was Not Unreasonable, Arbitrary, or Capricious
First, Reitz contends that the determination of the KU Residency Appeals
Committee was unreasonable, arbitrary, or capricious. Specifically, Reitz argues that the
Appeals Committee improperly relied on grounds for determining that she was not a
resident of Kansas based on information not contained on KU's website. She also argues
that Appeals Committee did not notify her in advance that they would use an attorney at
the hearing. Finally, she argues that KU unreasonably failed to produce a recording or
notes of the hearing.
"It is well recognized that a state has a legitimate interest in protecting and
preserving the quality of its colleges and universities as well as the right of its bona fide
residents to attend such institutions on a preferential tuition basis. Therefore, a state can
'establish such reasonable criteria for in-state status as to make virtually certain that
students who are not, in fact, bona fide residents of the state, but who have come there
solely for educational purposes, cannot take advantage of the in-state rates.'" [Citations
omitted.] Lockett v. University of Kansas, Residence Appeals Committee, 33 Kan. App.
2d 931, 941, 111 P.3d 170 (2005).
To this end, K.S.A. 76-729(a)(1) defines residency and nonresidency for the
purpose of tuition status at Kansas higher education institutions. In addition, K.S.A. 76-
730 requires the board of regents to adopt rules and regulations for determining the
residence of persons enrolling in state educational institutions. Pursuant to its statutory
mandate, the board of regents promulgated eight relevant factors to be used to determine
resident status. K.A.R. 88-3-2(b).
Specifically, the applicable regulation lists the following factors, which, "while not
conclusive, shall be given probative value in support of a claim for resident status."
"(1) Continuous presence in Kansas, except for brief temporary absences, during periods
when not enrolled as a student;
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"(2) employment in Kansas;
"(3) payment of Kansas state resident income taxes;
"(4) reliance on Kansas sources for financial support;
"(5) commitment to an education program that indicates an intent to remain permanently
in Kansas;
"(6) acceptance of an offer of permanent employment in Kansas;
"(7) admission to a licensed practicing profession in Kansas; or
"(8) ownership of a home in Kansas." K.A.R. 88-3-2(b).
In addition, the regulation also lists factors which establish non-resident status,
including:
"Maintenance of ties with another state or country, including financial support, voting,
payment of personal property taxes, registering a vehicle or securing a driver's license in
that state or country, may be considered sufficient evidence that residence in the other
state or country has been retained." (Emphasis added.) K.A.R. 88-33-2(e).
Finally, and most significant to our analysis, the regulation also establishes a
presumption of non-residency for full-time students and places the burden of overcoming
that presumption on the student.
"If a person is continuously enrolled for a full academic program as defined by the
institution were enrolled, it shall be presumed that the student is in Kansas for
educational purposes, and the burden shall be on the student to prove otherwise." K.A.R.
88-3-2(d).
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To begin, Reitz asserts that the Appeals Committee improperly applied the full list
of regulatory factors for determining her residency status rather than applying the more
limited summary of the regulatory factors that are displayed on the KU Registrar's
website. On its website, the KU Registrar's office highlights some of the regulatory
criteria. In particular, it cites to K.A.R. 88-3-2 and emphasizes the heavy burden facing
students in attempting to establish residency. Although Reitz points out the website does
not list all of the factors within the regulation, it does expressly state that "Resident
tuition classification is determined by criteria found in Kansas statutes and regulations of
the Kansas Board of Regents" and that the website "is a general overview of the
procedures and criteria used to determine resident status. It does not replace or supersede
the statutes or Regents' regulations which contain the detailed requirements that must be
met in order to prove resident status." In addition, the website cautions that
"demonstrating that you have met these criteria while attending school can be difficult."
Here, the sole reason set forth in the Residency Appeals Committee Public Vote
form for denying Reitz' appeal was that "[t]he student has not demonstrated that [she] is
residing in Kansas for a purpose other than educational." This language is taken from
K.A.R. 88-3-2(d), which provides: "If a person is continuously enrolled for a full
academic program as defined by the institution where enrolled, it shall be presumed that
the student is in Kansas for educational purposes, and the burden shall be on the student
to prove otherwise." Accordingly, we find that the Appeals Committee appropriately
looked to K.A.R. 88-3-2(d) in evaluating Reitz' residence application.
Further, we are not persuaded by Reitz' argument that the Appeals Committee
acted in an unreasonable, arbitrary, or capricious manner by applying the factors
inconsistently when evaluating her residence application. In this regard, Reitz contends,
that she "satisfied" the summarized factors listed on the Registrar's website and,
therefore, should have been considered a resident for tuition status. However, Reitz does
not point to any evidence in the record to support this contention. In particular, we find
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nothing in the record to establish that the Appeals Committee found any particular factor
in her favor. Instead, a review of the record reveals that the Appeals Committee based its
determination solely on its finding that Reitz had failed to demonstrate that she "is
residing in Kansas for a purpose other than educational." We will review whether there is
substantial competent evidence to support this finding in the next section of this opinion.
However, at this point, we conclude that the Appeals Committee's reliance on K.A.R. 88-
3-2(d) in considering Reitz' application for residency status was not unreasonable,
arbitrary, or capricious.
Next, Reitz argues that the Appeals Committee's use of a lawyer to cross-examine
her at the hearing was unreasonable, arbitrary, and capricious. However, Reitz concedes
that she cannot find any statute, regulation, or case that prohibits the Appeals Committee
from using an attorney during the hearing. Likewise, we cannot find any such authority.
We also find nothing in the record to establish that an attorney cross-examined Reitz at
the hearing. Regardless, even if an attorney was present and participated in the hearing,
we do not find this to be unreasonable, arbitrary, or capricious.
Similarly, Reitz has not pointed to anything in the record to establish that she was
prevented from bringing an attorney to the hearing if she desired to do so. Rather, we
note that there is a "Hearing Registration Form" in the record that provides that she was
invited to have others attend the hearing "with or on behalf of the Student." Further,
based on our review of the record, we see nothing that would suggest that Reitz asked to
bring an attorney or other representative with her to the hearing or that such a request was
denied. As a result, we find this argument to be unpersuasive.
Additionally, Reitz argues that the lack of a record of the Appeals Committee
hearing is unreasonable, arbitrary, or capricious. In this regard, she alleges that a record
was made of the hearing and that it was either lost or somehow destroyed. Reitz states
that "[a] person who was not a member of the Residency Appeals Committee and was not
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a student appealing their residency status appeared to be taking notes at the hearing." In
addition, Reitz asserts that another student attempted to make a statement "on the record"
in another hearing on the same day and was not corrected by the Committee.
Despite Reitz' assertions, we cannot find anything in the record to suggest that the
hearing was actually recorded or that Reitz requested to record the proceedings.
Likewise, we cannot tell who may have been taking notes or for what purpose. Moreover,
even if another student in a different hearing stated that he or she desired to make a
statement "on the record" and was not corrected, this does not mean that there was an
official record. Significantly, Reitz does not cite to any authority to suggest that the
Appeals Committee was required to make a record or otherwise transcribe the
proceedings. Accordingly, although the sparse record kept by the KU Residency Appeals
Committee makes judicial review more difficult, we do not conclude that it acted
unreasonably, arbitrarily, or capriciously.
Substantial Competent Evidence
Second, Reitz contends that the denial of her application for resident classification
by the KU Appeals Committee was not supported by substantial competent evidence. In
addition, Reitz challenges alleged inconsistencies in the reasons given for her denied
application and in the Appeals Committee's application of the regulatory factors. In
response, KU contends that Reitz is presumed by law to be in Kansas for the purpose of
obtaining an education and she failed to overcome this presumption. In particular, KU
argues that Reitz has continuously been a full-time student since transferring from Illinois
Central College in 2016.
Reitz suggests that the reason the KU Residency Appeals Committee gave for
denying her appeal does not match the reason given by the Registrar for initially denying
her application for resident classification. However, based on our review of the record,
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we do not find the justifications given by the Registrar and the Appeals Committee to be
in conflict. Specifically, we note that Reitz' application was denied both times because
she failed to overcome the presumption that she was not in Kansas for a purpose other
than to complete her education at KU. In particular, the record reflects that the Registrar
noted, "denied—ed purp (parents are KS residents but student is not claimed as a
dependent)," while the Appeals Committee noted that Reitz "has not demonstrated that
[she] is residing in Kansas for a purpose other than educational."
In addition, regarding Reitz' argument that the KU Residency Appeals Committee
applied different factors than those summarized on its webpage, we already found above
that the Appeals Committee appropriately looked to K.A.R. 88-3-2(d) in evaluating her
application. Likewise, as also addressed above, we do not find that the unchecked boxes
on the Appeals Committee's form necessarily mean that the Appeals Committee decided
that particular factor in Reitz' favor. Ultimately, Reitz is asking us to reweigh the
evidence in the record and reach a different conclusion than the one reached by the
Appeals Committee. However, even though we are empathetic towards Reitz' position, it
is not our role to replace our judgment for that of the Appeals Committee if there is
substantial competent evidence to support its decision.
Additionally, we note that both the Kansas Supreme Court and this court have
previously upheld the denials of resident applications filed by students based on facts
very similar to the facts of this case. In particular, our courts have affirmed denials of
applications for resident classification where a student comes to this state for the purpose
of attending a Kansas institution of higher education, starts immediately or shortly after
arriving in the state, and remains continuously in the school for the duration of his or her
college education. See Peck v. University Residence Committee, 248 Kan. 450, 807 P.2d
652 (1991); In re Residency Application of Bybee, 236 Kan. 443, 691 P.2d 37 (1984);
Lockett v. University of Kansas, Residence Appeals Committee, 33 Kan. App. 2d 931,
111 P.3d 170 (2005). Thus, the only questions that we must answer are whether the
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Appeals Committee's decision was supported by substantial competent evidence and
whether its decision was "so wide of the mark to be outside the realm of fair debate."
Peck, 248 Kan. at 456, quoting Zinke & Trumbo Ltd. v. Kansas Corp. Commission, 242
Kan. 470, 474 749 P.2d 21 (1988).
Here, a review of the record reveals that there is substantial competent evidence to
support the decision of the KU Residency Appeals Committee. In particular, it is
undisputed that Reitz transferred from Illinois Central College to attend KU in August
2016. It is also undisputed that at the time she was a resident of the State of Illinois.
Additionally, it is undisputed that Reitz began taking classes at KU shortly after coming
to Kansas and has continuously remained a full-time student. Further, it is undisputed that
Reitz received—and at the time of her application for resident classification was still
receiving—a KU Midwest Exchange Scholarship awarded to students from other states
who transfer to KU from other institutions of higher education.
In her application for resident classification, Reitz was asked: "Why did you
come/return to Kansas?" and she responded: "To attend K.U. Parents moved back for
jobs." However, it is undisputed that Reitz' parents did not move to Kansas until
December 2017, which was more than a year after Reitz began attending classes at KU.
Although Reitz now lists her parents' home in Kansas as her permanent residence, there is
nothing in the record to suggest that she has lived there for any significant length of time.
Also, it is undisputed that although Reitz' parents help pay for her tuition and other
related expenses, they do not claim her as a dependent for income tax purposes.
Certainly, reasonable minds could differ over the ultimate decision reached by the
Appeals Committee. Nevertheless, we find the decision reached was reasonable based on
the evidence presented. This is particularly true because Reitz was faced with the burden
of overcoming the presumption set forth in K.A.R. 88-3-2(d), which provides that a
student who "is continuously enrolled for a full academic program as defined by the
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institution where enrolled, it shall be presumed that the student is in Kansas for
educational purposes . . . ." Based on our review of the record as a whole, we conclude
that there is substantial competent evidence to support the Appeals Committee.
District Court's Standard of Review
Finally, Reitz contends that the district court applied an improper standard of
review when it affirmed the KU Residency Appeals Committee's denial of her
application for resident classification. In particular, Reitz argues that the district court's
discussion of the eight factors set forth in K.A.R. 88-3-2(b) was improper. However, we
note that our Supreme Court similarly applied the eight factors from the regulation in
Peck despite the lack of a similar evaluation by the Kansas State Residence Committee.
See 248 Kan. at 455, 458-61. As such, we do not fault the district court for doing the
same.
Regardless, as indicated above, we are to consider this appeal under the KJRA as
if the petition for review of the Appeals Committee's decision had been originally filed
with us. See In re Tax Appeal of Fleet, 293 Kan. at 776; Carlson Auction Service, Inc., 55
Kan. App. 2d at 349. As such, even if the district court applied an improper standard of
review, we have conducted our review of the issues presented consistent with the KJRA.
Thus, any alleged error by the district court regarding the standard of review was
harmless. See K.S.A. 77-621(e) (Under the KJRA, "due account shall be taken by the
court of the rule of harmless error.").
CONCLUSION
In light of a review of the record as a whole, we find that the determination by the
KU Residency Appeals Committee that Reitz failed to rebut the presumption of
nonresidency was supported by substantial competent evidence. Likewise, we find no
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basis to support Reitz' contention that denying her request to be reclassified as a resident
of Kansas was unreasonable, arbitrary, or capricious. We, therefore, conclude that the
district court's decision denying Reitz' petition for relief and affirming the determination
of the Residency Appeals Committee is affirmed.
Affirmed.
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