Shim v. Rutgers-The State University

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

Rutgers, the State University of New Jersey, is a statutorily defined “public institution[ ] of higher education[,]” N.J.S.A 18A:62-1, that traces its lineage to a royal charter dated November 10, 1766. N.J.S.A. 18A:65-2. From that genesis, its special position in New Jersey’s system of public higher education has been cemented as an institution “impressed with a public trust for higher education of the people of the state of New Jersey; and which is the instrumentality of the state for the purpose of operating the state university.” Ibid. In furtherance of Rutgers’s mission, the Legislature has “declared to be the public policy of the State of New Jersey that ... resources be and continue to be ... appropriated by the State adequate for the conduct of a State university with high educational standards[.]” N.J.S.A 18A:65-27.I.b. Recognizing Rutgers’s taxpayer-funded status, the Legislature also has provided for a two-tiered system of tuition whereby “out-of-state student[s are] subject to signifi*393cantly higher tuition than that accorded New Jersey students.” Lipman v. Rutgers-The State Univ. of N.J., 329 N.J.Super. 433, 436, 748 A.2d 142 (App.Div.2000).

In its narrowest sense, this appeal requires that we examine Rutgers’s determination that plaintiff Ezrina Shim was not domiciled in New Jersey, thereby denying her in-state tuition status. In doing so, we must first determine whether, as a matter of law, plaintiff has met the statutory predicates for domicile and, hence, eligibility for in-state tuition status; I conclude that she did not. Further, even if plaintiff did meet those predicates, a plain language reading of the applicable statute with the regulations of the Commission on Higher Education governing the determination of whether a student is eligible for state-resident tuition yields two core conclusions: that they are harmonious with each other and with the Legislature’s mandate; and that Rutgers’s determination that plaintiff failed to qualify for in-state tuition status pursuant to those regulations was neither arbitrary, nor capricious, nor unreasonable, and therefore must be sustained.

That backdrop requires that I reach the following conclusions. To the extent the majority concludes that “an appeal from a final decision by [Rutgers] in respect of a student’s domicile must lie in the Appellate Division pursuant to R. 2:2-3(a)(2)[,]” ante, 191 N.J. at 383 n. 4, 924 A.2d at 470 n. 4 (2007), and that the standard of review of Rutgers’s domicile decisions is the same as that applied to all other administrative agencies, ante at 383-84, 924 A.2d at 471, I concur with the majority’s views. However, to the extent that, in this peculiar instance, the majority improperly conflates residency and domicile, and to the extent the majority leapfrogs over the plain language of the statute and instead starts its analysis with the statute’s legislative history, I respectfully dissent.

I.

I am in general agreement with the majority’s recitation of the facts in this case. I emphasize the following. Plaintiff was born on November 5, 1984. Thus, as of the date she matriculated at *394Rutgers in 2003, less than twelve months had elapsed since she turned eighteen years old. Also, despite several requests from Rutgers, plaintiff repeatedly failed to provide information to support her claim that she was entitled to in-state tuition status. For example, in her original application for admission, plaintiff claimed she was entitled to in-state tuition status. By a letter dated March 5, 2003, Rutgers advised plaintiff of Rutgers’s obligation to determine plaintiff’s status, a “determination [that] is important not only for tuition assessment, but also for federal and state aid programs[.]” That letter also cautioned that “[i]f [plaintiffs] legal residency status remains unresolved at the time your term bill payment is due, you will be assessed non-resident charges until a final ruling is made.” Rutgers made clear that “[a]ll requests for in-state residency status must be submitted prior to the start of classes.”

Plaintiff did not respond. As a result, on June 17, 2003, Rutgers’s office of university undergraduate admissions again wrote to plaintiff, exhorting her to submit the required information in a timely manner. In large measure, plaintiff also ignored that letter. Her sole response consisted of a letter dated July 30, 2003 — six weeks later — from her “senior high youth pastor at Emmanuel Church in Philadelphia” who “assure[d Rutgers] that [plaintiff] has maintained residency at [her aunt’s and uncle’s] address [in Mount Laurel.]” Rutgers received that letter on August 11, 2003 and, the very next day, responded to plaintiff, acknowledged receipt of the letter and clearly explained that plaintiff had not met the legal requirements to claim in-state tuition status. Rutgers repeated yet once more its earlier warnings to plaintiff: “if your residency status is unresolved at the time payment is due, you will be required to pay the non-resident tuition rate[.]” Again, plaintiff did nothing.

Plaintiff matriculated for the Fall 2003 semester and started attending classes. Submitting a partially completed Residency Analysis Form dated November 1, 2003, plaintiff finally attempted to respond, albeit only in part, to Rutgers’s repeated requests for information on which to base a decision on plaintiffs request for *395in-state tuition status. Significantly, plaintiff did not “claim New Jersey residency for [t]uition purposes” for any of the stated reasons defined by the Commission on Higher Education.1 Plaintiff scratched out that section of the Residency Analysis Form and, instead, enclosed a series of items she asserted supported her claim. Plaintiff supplemented her submissions on November 29, 2003.

Rutgers promptly acknowledged receipt of plaintiffs submission and denied her request for “in-state residency status for tuition purposes[,]” concluding that because plaintiff was dependent on her parents who are not New Jersey residents, she was “deemed to be a non-resident of New Jersey for tuition purposes.” Rutgers also addressed plaintiffs argument that the regulations of the Commission on Higher Education were in conflict with “N.J.S.A 18A:62-4, the state law which defines residency for tuition purposes.” In Rutgers’s view, “N.J.S.A 18A:62-4 is silent as to the presumed domicile of a dependent student.” Rutgers explained that “[a]bsent a statutory statement about the residency of a dependent student, there can be no conflict between the statute and the regulations; rather, the state regulations are indicative of a reasonable exercise of the regulatory authority of a state agency to interpret the statute.” Noting that plaintiff had “failed to provide the required disclosure regarding parental financial assistance” and that “evidence of residence in New Jersey for the sole purpose of attending school and a presence in the state is, in and of itself, insufficient to establish residence for the purpose of instate tuition[,]” Rutgers denied plaintiffs request.

*396Plaintiff filed timely appeals of Rutgers’s determination denying her in-state tuition status,2 each of which was denied. Responding to plaintiffs first appeal and pointedly combining common sense with public policy considerations, Rutgers reasoned that

[t]he regulation’s rule of imputed domicile for dependent students makes perfect sense. The Commission, in a reasonable exercise of administrative discretion, recognized that most undergraduate students are financially dependent on their parents. Furthermore, the parents are the parties who pay taxes that fund state universities. Thus, pursuant to applicable regulations, the residence of the parents of an undergraduate student dictates the tuition status, not the residence of the student. If this rule did not apply, the funding for the state universities would be at risk, because students would be able to pay in-state tuitions while their parents do not pay taxes in New Jersey. This would create an incentive for out-of-state applicants to establish an address in New Jersey solely to obtain in-state tuition status while their parents avoid paying the New Jersey taxes that support the university. Moreover, a student who remains financially dependent upon his or her parent has not truly severed the bonds which connect that student to the parents’ home, and if these bonds continue to exist the student cannot establish a domicile in New Jersey.

Rutgers explained that “[djespite prompting, you have neither provided the required disclosure regarding parental financial assistance nor sought to declare yourself independent[,]” which led Rutgers to “believe that you would be unable to declare yourself independent.”

II.

A.

The majority first concludes that residency in New Jersey while plaintiff was still a minor should be counted towards determining *397whether she meets the statutory requirement of domicile in New Jersey for in-state tuition purposes. I do not agree.

In-state tuition determinations at New Jersey’s public institutions of higher education are governed by N.J.SA 18A:62-4, which provides in full that

Persons who have been resident within this State for a period of 12 months prior to enrollment in a public institution of higher education are presumed to be domiciled in this State for tuition purposes. Persons who have been resident within this State for less than 12 months prior to enrollment are presumed to be nondomiciliaries for tuition purposes. Persons presumed to be nondomiciled or persons who are presumed to be domiciled, but whose domiciliary status is challenged by the institution, may demonstrate domicile according to rules and regulations established for that purpose by the Commission on Higher Education. Residence established solely for the purpose of attending a particular educational institution is not domicile for the purposes of this act.

Thus, the triggering event for a determination of whether a student is entitled to an in-state tuition discount is the student’s domicile. In N.J.SA 18A:62-4, the Legislature provided two sources to be used in making that determination: either a statutory presumption, or a mechanism for demonstrating domicile — the “rules and regulations established for that purpose by the Commission on Higher Education” — when the application of the statutory presumption is challenged either by the student or by the institution.

Hewing to that analytical structure of the statute, we are called on first to consider whether plaintiff is entitled to a statutory presumption of domicile. It is only after that threshold is breached that we may address whether the statute and its implementing regulations are in harmony.

B.

Plaintiff asserts that a plain reading of the statute requires the conclusion that she is presumed to be a domiciliary of New Jersey. As plaintiff sees it, all N.J.S.A 18A:62-4 requires for a determination of New Jersey domicile is that the “[p]ersons ... have been resident within this State for a period of 12 months prior to enrollment in a public institution of higher education[.]” Plaintiff *398notes that, because it is uncontradicted that she was resident in this State since 1999, she satisfied the twelve-month statutory requirement.

Although possessing superficial appeal, that argument does not withstand closer scrutiny. Imbedded in the facts in this case is that, when she relocated to New Jersey, plaintiff was but fourteen-years-old and did not reach the age of majority — age eighteen, N.J.S.A. 9:17B-3 — until shortly before she applied for admission to Rutgers. Because a minor is legally unable to establish domicile, any period of residency prior to plaintiff’s eighteenth birthday is simply irrelevant. Further, because as of the time plaintiff matriculated, started classes, or even tardily applied for in-state tuition status, she had not yet had twelve months of residency in New Jersey as an adult, she does not qualify for the application of the statutory presumption.

“Domicile is in ‘a strict legal sense ... the place where [a person] has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning, and from which he has no present intention of moving.’ ” In re Jacobs, 315 N.J.Super. 189, 193-94, 717 A.2d 432 (Ch.Div.1998) (quoting Cromwell v. Neeld, 15 N.J.Super. 296, 300, 83 A.2d 337 (App.Div.1951)). It has long been New Jersey law that “[e]very person has a domicile at all times, and no person has more than one domicile at any one time.” In re Estate of Gillmore, 101 N.J.Super. 77, 87, 243 A.2d 263 (App.Div.), certif. denied, 52 N.J. 175, 244 A.2d 304 (1968). It is a core tenet of our law that “[a] domicile once established continues until it is superseded by a new one” and that “[d]omieile may be acquired in one of three ways: (1) through birth or place of origin; (2) through choice by a person legally capable of choosing his domicile[;] and (3) through operation of law in the case of a person who lacks capacity to acquire a new domicile by choice.” Ibid.

The discrete issue presented in this ease is whether plaintiff, although still a minor, could establish her domicile in New Jersey while her parents remained in Korea. Applying time-honored *399rules for the determination of a person’s domicile, the answer to that question must be “no.” Following the general trend, New Jersey has consistently held that

[t]he domicile of the child follows the domicile of the father. It is settled that persons not mi juris are assigned a domicile by operation of law; a legitimate child takes the domicile of its father at birth; regardless of where the child may actually live, the domicile of the father is that of the child during minority.
[A v. M and C, 74 N.J.Super. 104, 110, 180 A.2d 541 (Middlesex County Ct.1962).]

In the parallel context of a free public high school education of a minor, it has been held that “the domicile of an unemancipated child is the domicile of the parent, custodian or guardian.” P.B.K. v. Bd. of Educ. of the Borough of Tenafly, 343 N.J.Super. 419, 427, 778 A.2d 1124 (App.Div.2001). See also Pieretti v. Pieretti, 13 N.J. Misc. 98, 102, 176 A. 589 (Ch. Ct.1935) (holding that “the domicile of a legitimate unemancipated minor, whose will cannot concur with the fact of residence, is, if his father be living, the domicile of the father; that a minor cannot change his domicile of his own will”); Renner v. Renner, 13 N.J. Misc. 749, 765, 181 A. 191 (Ch. Ct.1935) (same); Rinaldi v. Rinaldi, 94 N.J. Eq. 14, 21, 118 A. 685 (Ch. Ct.1922) (same); Hess v. Kimble, 79 N.J. Eq. 454, 457, 81 A. 363 (Ch. Ct.1911) (holding that “[i]t is an undisputed position of all jurists ... that, of his own accord, proprio marte, the minor cannot change his domicil” (citing Phillimore on Domicil, at 37)); Blumenthal v. Tannenholz, 31 N.J. Eq. 194, 197 (Ch. Ct.1879) (same).

The governing principle is clear: “It is the general rule that an unemancipated infant cannot of its own volition acquire a new domicile.” In re Adoption of Susan— ,an infant, 22 N.J. Misc. 181, 185, 37 A.2d 645 (Orphans Ct.1944) (citing In re Estate of Russell, 64 N.J. Eq. 313, 53 A. 169 (Prerog.Ct.1902); Van Matre v. Sankey, 148 Ill. 536, 36 N.E. 628 (1893); Sudler v. Sudler, 121 Md. 46, 88 A. 26 (1913)). Because plaintiff offered no proofs of emancipation, she was legally barred from establishing a domicile different from that of her parents until she reached the age of majority. The application of that principle leads to two separate but consistent results: all proofs tendered by plaintiff in respect of *400her residency in New Jersey prior to reaching her eighteenth birthday were legally irrelevant; and, as of the time she applied for admission to Rutgers, was accepted, matriculated and started classes there, and applied for in-state tuition status — most importantly, at the statutorily defined time of the “period of 12 months prior to enrollment[,T N.J.S.A 18A:62-4 — plaintiff plainly was unable, as a matter of law, to satisfy the twelve-month residency requirement giving rise to a presumption of domicile under N.J.S.A 18A:62-4. Therefore, as a threshold matter, plaintiff does not qualify for in-state tuition status under N.J.S.A. 18A:62-4

III.

Even if plaintiff, by reason of her continued residency, was qualified to apply for in-state tuition status, the inquiry is not at an end. A plain reading of the statute instructs that, after defining who is entitled to a statutory presumption of domicile, N.J.S.A 18A:62-4 further provides that “persons who are presumed to be domiciled, but whose domiciliary status is challenged by the institution, may demonstrate domicile according to rules and regulations established for that purpose by the Commission on Higher Education.” That, in a nutshell, is this case: by operation of the first sentence of the statute, plaintiff could be presumed to be domiciled in New Jersey, but her domiciliary status was challenged by Rutgers. The issue is joined once the challenge is interposed. Once so joined, the Legislature directs that the person seeking domiciliary status — and, hence, the instate tuition discount — bears the burden of “demonstrating] domicile according to [the] rules and regulations established for that purpose by the Commission on Higher Education.” See Lipman, supra, 329 N.J.Super. at 445, 748 A.2d 142 (explaining that “the applicable regulations and Rutgers’[s] policies required Lipman to prove he was domiciled in New Jersey”).

Whether the regulations of the Commission on Higher Education are consonant with the provisions of N.J.S.A. 18A:62-4 requires the invocation of established principles:

*401[W]e set forth the general principles in reviewing a challenged rule. We start with the premise that we must give great deference to an agency’s interpretation and implementation of its rules enforcing the statutes for which it is responsible. Such deference is appropriate because it recognizes that “agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are particularly well equipped to read and to evaluate the factual and technical issues that rulemaking would invite.” Consequently, agency rules are accorded a presumption of validity and reasonableness, and the challenging party has the burden of proving the rule is at odds with the statute.
Despite that deference, a rule will be set aside if it is inconsistent with the statute it purports to interpret. That is, the agency may not under the guise of interpretation give the statute any greater effect than its language allows. Thus, if the regulation is plainly at odds with the statute, we must set it aside.
[In re Freshwater Wetlands Prat. Act Rules, 180 N.J. 478, 488-89, 852 A.2d 1083 (2004) (citations, internal quotation marks and editing marks omitted).]

Our task, then, is to determine whether the applicable regulations are “inconsistent with the statute it purports to interpret” so that “under the guise of interpretation” Rutgers does not “give the statute any greater effect than its language allows.” Ibid.

Those regulations appear initially at N.J.A.C. 9A:5-1.1. N.J.A.C. 9A:5-l.l(a) defines “domicile” consistent with black-letter law: “Domicile is defined as the place where a person has his or her true, fixed, permanent home and principal establishment, and to which, whenever he or she is absent, he or she has the intention of returning.”3 The next four subsections of this regulation, N.J.A.C. 9A:5-l.l(b) to -1.1(e), separately repeat the four sentences of N.J.S.A. 18A:62-4. The next regulatory provision, the one most relevant here, states that:

Dependent students as defined in the rules of the Higher Education Student Assistance Authority at N.J.A.C. 9A:9-2.6 are presumed to be domiciled in the state in which their parent(s) or legal guardian(s) is domiciled. Dependent students whose parent(s) or legal guardian(s) is not domiciled in New Jersey are presumed to be in the State for the temporary purpose of obtaining an education and presumed not to be domiciled in New Jersey.
[N.J.A.C. 9A:5-1.1(f).]

The Higher Education Student Assistance Authority regulations, N.J.A.C. 9A:9-2.6(c), define a “dependent student” as “any student *402who does not meet any of the eligibility criteria listed ... for independent student status[,]” the very eligibility criteria Rutgers explicitly listed on its Residency Analysis Form and the precise questions plaintiff refused to answer for obvious reasons: plaintiff admittedly did not satisfy the criteria for independent student status set forth in N.J.AC. 9A:9-2.6(a) or (b).

Those regulations are entirely consonant with N.J.S.A 18A:62-4. By its own terms, the statute delegates to the Commission on Higher Education the authority to define the scope of any challenge to a domicile determination. It is not claimed that there was any irregularity in the adoption of the relevant regulations; all that is alleged is that those regulations somehow exceed the scope of the statute. I cannot agree. Instead, those regulations sensibly and reasonably define what is necessary to overcome either a statutory presumption of non-domicile or a challenge to a statutorily presumed domicile, nothing more and nothing less. More importantly, those regulations are in harmony with the provisions of N.J.S.A 18A:62-4 and, therefore, cannot be voided as ultra vires.

The application of those regulations to the proofs adduced demonstrates that Rutgers concluded, at least preliminarily, that plaintiff’s presence in New Jersey before she enrolled at Rutgers may have entitled her to the statutory presumption of domicile. Rutgers, however, as explicitly authorized by the statute, challenged plaintiffs domicile. At that point, again, the statute requires that plaintiff — not Rutgers — “demonstrate [her] domicile according to [the] rules and regulations established for that purpose by the Commission on Higher Education.” N.J.S.A 18A:62-4 (emphasis supplied). Plaintiff failed in meeting that burden.

The majority, however, approaches this matter differently. Addressing first the statute’s legislative history, the majority explains that N.J.S.A 18A:62-4’s “legislative history is critical to any analysis of the statute.” Ante at 385, 924 A.2d at 472. I disagree *403with that approach. The hierarchical analysis to be applied in construing a statute is well-settled:

The Legislature’s intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole. It is not the function of this Court to rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language. We cannot write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment, or engage in conjecture or surmise which will circumvent the plain meaning of the act. Our duty is to construe and apply the statute as enacted.
A court should not resort to extrinsic interpretative aids when the statutory language is clear and unambiguous, and susceptible to only one interpretation. On the other hand, if there is ambiguity in the statutory language that leads to more than one plausible interpretation, we may turn to extrinsic evidence, including legislative history, committee reports, and contemporaneous construction. We may also resort to extrinsic evidence if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language.
Our analysis, therefore, begins with the plain language of the statute.
[DiProspero v. Penn, 183 N.J. 477, 492-93, 874 A.2d 1039 (2005) (citations, internal quotation marks and editing marks omitted; emphasis supplied).]

N.J.S.A 18A:62-4 is in no wise ambiguous. It states that one who has been a resident of this State for twelve months prior to enrollment at Rutgers is presumed to be a domiciliary and, hence, entitled to in-state tuition status. As a matter of law, plaintiff simply did not qualify as she could not have been a legal resident for domicile purposes while she was a minor. In any event, in unambiguous language N.J.S.A 18A:62-4 addresses what is to be done if an applicant either (a) is presumed a domiciliary by reason of residency but that domicile is challenged by Rutgers, or (b) is not presumed to be a domiciliary by reason of residency: “Persons presumed to be nondomiciled or persons who are presumed to be domiciled, but whose domiciliary status is challenged by the institution, may demonstrate domicile according to rules and regulations established for that purpose by the Commission on Higher Education.” Here, Rutgers determined that plaintiff failed to demonstrate domicile “according to rules and regulations established for that purpose by the Commission on Higher Education[,]” N.J.S.A. 18A:62-4, a determination that must be sus*404tained “unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record.” Ante at 384, 924 A.2d at 471.

In this record, it cannot be said that Rutgers’s denial of in-state tuition status to plaintiff was arbitrary, capricious, or unreasonable; based on our canons of statutory interpretation, it cannot be said that Rutgers’s determination violated any legislative policies, whether express or implied; it cannot be said that this determination offended any constitutional provision; and it cannot be said that Rutgers’s decision was not supported by the record evidence. In such an instance, our duty is clear: we are oath-bound to sustain the action of the administrative agency.

IV.

For the reasons explained both here and in Judge Wefing’s clear and well-reasoned dissent in the Appellate Division, Shim v. Rutgers-the State Univ. of N.J., 385 N.J.Super. 200, 208-11, 896 A.2d 1118 (App.Div.2006) (Wefing, J., dissenting), I would reverse the judgment of the Appellate Division and reinstate the domicile determination made by Rutgers denying plaintiffs application for in-state tuition status for the academic year 2003-2004. To the extent the majority rules differently, I respectfully dissent.4

For affirmance — Chief Justice ZAZZALI and Justices LONG, LaVECCHIA, ALBIN, WALLACE and HOENS — 6. For concurrence in part; dissentment in part — Justice RIVERA-SOTO — 1.

These are that the student "[i]s 24 years of age or older by December 31 of the award year; or ... [i]s an orphan or ward of the court or was a ward of the court until age 18; or [i]s a veteran of the Armed Forces of the United States; or [i]s a graduate or professional student; or [i]s a married individual; or [h]as legal dependents other than a spouse; or [i]s a student for whom a financial aid administrator makes a documented determination of independence by reason of other unusual circumstances as provided under Title IV of the Higher Education Act of 1965, as amended, 20 U.S.C. § 1087w, and its implementing regulations and rules." NJ.A.C. 9A:9-2.6(a)l, (b)l to (b)6.

According to Rutgers's policy governing in-state residency for tuition purposes, "[alppeals from the initial determination and any determination made after a request by a student for a change in residency status will be accepted no later than three months after the date of notification of any such determination that is appealed." Furthermore, shortly after her receipt of Rutgers's decision denying her in-state tuition status, plaintiff made inquiry directly to Rutgers's office of university undergraduate admissions and was advised, by a letter dated December 11, 2003, the location where any appeal must be lodged and that it "must be submitted within three months from the date of my [December 4, 2003] letter."

That definition is adopted almost verbatim from Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d 862 (Sup.Ct.1944).

The relief afforded by the majority is to remand the matter to Rutgers "for reconsideration in light of the principles to which [the majority] ha[s] adverted." Ante at 384, 924 A.2d at 476. It bears highlighting that nothing in the majority's decision commands any particular result; Rutgers, in the proper exercise of its administrative authority and discretion, may revisit plaintiff's application and still find it wanting.