*1 PLAINTIFF-RESPONDENT, SHIM, v. RUTGERS- EZRINA JERSEY, THE UNIVERSITY OF NEW STATE DEFENDANT-APPELLANT. Jаnuary 2007. Argued 2007 Decided June *3 (Lowenstein Rooney argued appellant J. the cause for Gavin Walsh, PC, attorneys; Rooney A. Sandler Mr. and Kathleen briefs). *4 (Schnader argued respondent H. Justin Park the cause for LLP, attorneys). Segal Harrison & Lewis opinion Justice LONG delivered the of the Court. 2003, eighteen-year-old applied
In Ezrina for admission to Shim time, Rutgers University (Rutgers) for fall At the she term. years Jersey pre- in for four and therefore was had lived New sumed, 18A:62-4, domiciliary a for under N.J.S.A to be Rutgers’ reading appli- purpose of in-state tuition. Under 9A:5-l.l(f), regulation, N.J.AC. Shim cable administrative solely subject counter-presumption non-domiciliary to a status dependence parents. on because of her financial her out-of-state Rutgers only bearing depen- considered evidence on that financial deciding dence in case. Because Shim could not establish Shim’s financially independent parents, applica- that she was of her her appealed tion for tuition was denied. and the in-state Shim Appellate Rutgers Division reversed and remanded the case to for of all of the reconsideration evidence determine whether the she, presumption of non-domicile had been overcome and whether affirm, fact, in that she established was domiciled here. We now although grounds. on different that, pursuant legislative hold to the
We scheme N.J.S.A. 18A:62^4, a has in for student who lived twelve presumed domiciliary months to enrollment is to be a for is, fact, purposes. dependent tuition If that student on out-of- parents, dependence genuine regarding a state creates issue presumption favor is neutralized. Howev- er, contrary give that does not rise to the that she is Rather, non-domiciliary. domiciliary presumed she is neither a non-domiciliary. fully, fairly, nor must then evidence, dispassionately including consider all submitted but dependence not limited to evidence of the student’s on out-of-state parents. preponderance If a of the evidence indicates that the classify student’s domicile is New then it must her as a domiciliary purposes. in-state
I. Montgomery County, Pennsylvania Ezrina Shim was born in later, November 1984. Sometime left the Shim United States parents August 1999, with her and settled Korea. she uncle, moved back to the United States to live with her aunt and *5 Parks, Laurel, Jersey. parents remained in Mount Her in Korea. Park, years living four with Mr. and Mrs. Shim attended
While high in also obtained a New school Mount Laurel. She license; registered in acquired and an automobile New driver’s State; jobs Jersey; in opened a bank account this worked several returns; here; regis- Jersey personal tax filed New income addition, forged Burlington County. In Shim tered to vote relationships in meaningful and around the State. several social 1999, continuously in Mount Laurel with Since Shim has resided uncle, only visiting parents in Korea twice: for her aunt and her in the of 2000 and for three weeks six weeks the summer represented to that she consid- summer of 2002. has others She returning Jersey her and has no intention of to live ers New home fluently, speak and has no in Korea. does not Korean She meaningful social life or close friends Korea. Shim, old, eighteen years as September then enrolled enrollment, undergraduate Rutgers. Prior to student of this was not a resident
Admissions Office determined Shim dependent student purposes for tuition because she was State however, Shim, claimed parents whose were not domiciled here. living arrangement on with her aunt based uncle. result, Rutgers in March 2003 to
As a contacted Shim letter tuition. The letter she had a claim for in-state determine whether legal guardians Mrs. Park Shim’s asked whether Mr. and were Residency Analysis complete Form requested Shim (RAF). respond to that initial communication When Shim did 17, 2003, letter, requesting Rutgers sent her another dated June response, Having information. received no immediate the same 11, 2003, for fall of July Rutgers issued Shim a tuition bill higher for an out-of-state charging her the tuition rate resident. Lim, July youth pastor
On Dennis Shim’s at Emmanu- Philadelphia, attesting el Church sent a letter that he years during *6 had known Shim three and that time she had Laurel, Jersey. resided with her aunt and uncle in Mount New that, knowledge, Lim also noted to his “Ezrina has no interest[ ] returning graduates college” from Korea after she and “her life States, is here the United not in Korea.” Upon letter, receipt Rutgers again of Lim’s asked whether Mr. legal guardians requested and Mrs. Park were Shim’s and complete Shim the RAF. also indicated that if Mr. and legal they guardians, Mrs. Park were Shim’s should submit docu- supporting Jersey mentation claim to their be New domiciliaries. responded Shim on November after she had enrolled specified by Rutgers Policy but within the timeframe in its State- Residency Purposes. ment on Student for Tuition In her re- sponse, formally requested change Shim a status and partially-completed a enclosed RAF. RAF, Jersey
On her Shim indicated that she had moved to New permanently “to live in the United States.” She also claimed that hoped college expenses through she to finance her financial aid.1 financially independent, dependent Shim did not claim to be of a Jersey parent legal guardian, spouse New resident or or a of a Jersey Consequently, complete resident. she did Parts RAF, which, instructions, per II and III of the the form’s are financially student, independent spouse, be filled out his/her Jersey parent legal guardian depen- the New resident of a claim, support however, dent student. In of hеr Shim submitted documents,2 an “Description “Enclosures List” with fourteen college through Shim did indeed aid, fund some of her financial but expenses also received financial from her support parents. (1) (2) (3) high certificate; The enclosures were: Shim’s birth passport; (4) (5) (6) school driver’s license; Title; Motor Vehicles Certificate of transcript; (7) registration original confirming voter card; memo from Commerce Bank (8) (9) account; return; Shim’s 2002 federal income tax 2002 New state Jersey, “Argu- detailing relationship to New Facts” her an addendum. supplemented she with ment” which later request in her for in-state tuition set out the basis Shim 18A:62-4, There, all that under N.J.SA “Argument.” she noted entitled to in-state are domiciled in New are students who rates, lived in the state for twelve and individuals who have university public in a months to enrollment years in the state for over four As Shim had lived domiciliaries. Rutgers, argued that she should have enrollment at she before her for, received, in-state tuition rates. presumed eligible been 9A:5-l.l(f) estab- arguing, recognized that N.J.AC. Shim par- dependent with counter-presumption that students lishes a for tuition оutside of the state are non-domiciliaries ents domiciled Shim, con- According regulatory presumption purposes. legislative presumption there- flicts with the above-mentioned *7 Alternatively, argued that if Shim even fore should be set aside. conflict, directly presumptions did not the administrative the two void as an unauthorized exercise regulation should be declared agency power. regulatory
Finally, had claimed that she rebutted Shim through proved and her domicile presumption of non-domicile legal documentary provided with her RAF. As evidence she adult, possessed capacity to choose that she Shim contended to show and had submitted evidence sufficient her own domicile (2) (1) Jersey to physically present in and intends she is New Rutgers Accordingly, maintained that should remain here. Shim acknowledged domiciliary granted her in-state her as a have rates. (11) (10) Jersey earnings; reflecting receipt; New tax 2002 Form W-2 income (12) reflecting Jersey earnings; New Form W-4 and 2003 Form NJ-W4 stubs; (13) pay W-4 and 2003 Education 2003 Form Mount Laurel Board of (14) support, reflecting Jersey еarnings; and letters of sent New Form NJ-W4 separate under cover. 4, 2003, Rutgers’ rejected On December Admissions Office request residency letter, Shim’s for in-state In status.3 its Rut- gers explained that N.J.AC. 9A:5-1.1 and 9A:9-2.6 mandate that undergraduate presumed student to have the parents, proves status of her unless the student that she is “independent” Policy as defined Statement and the state regulations. “indepen- Because Shim never claimed that she was dent,” provided effect, no Rutgers evidence to that continued presume Jersey that she was a non-resident of New for tuition purposes.
Further, Rutgers provided noted that the evidence Shim was “of residence in purpose school,” for the attending sole plus [was], and that presence itself, fact “a in the state in and of insufficient establish purpose residence for the of in-state essence, tuition.” In Rutgers found that Shim’s residence State for twelve months to enrollment was irrelevant to its domicile determination because it was unrelated to the “control- ling provision case,” namely dependent [the] that Shim is a parents student on out-of-state and thus to be a non- domiciliary purposes. for tuition timely appealed
Shim through Rutgers’ decision adminis- process. appeal trative every Her stage denied at for the Rutgers same reasons previously addition, had stated. dependent added that a pre- student can overcome the sumption of shared “if special the student has family unusual circumstances that have resulted a condition of independence.” financial According Rutgers, Shim had not shown she had established her own domicile in New because “a financially dependent student who remains upon his or parents truly has not severed the bonds which connect that *8 parents’ student to the home.” 3 time, Around that support the Admissions Office also received letters of (received 29, high
behalf of Shim from: her school counselor on November 2003); uncle, (received 17, Gihong 2003); her Mr. Park on December and her Sunday (received 20, 2003). School teacher at Emmanuel Church December
383 Shim, represent- appeals, Having her administrative exhausted counsel, complаint prerogative by a in lieu of writs in the filed ed Division,4 declaratory Court, seeking judgment a Superior Law purposes. Shim also for tuition that she was an in-state resident overcharges for the 2003-2004 sought to reimbursed for tuition year. Rutgers filed for sum- and cross-motions academic Shim granted judge mary judgment. argument, After the trial oral Rutgers’ motion. and, decision, Appellate in Division appealed split a
Shim application Rutgers’ for in-state residen- held that denial of Shim’s upon arbitrary capricious it was based cy status and because was regulatory standard. application of the relevant an erroneous (App.Div. 1118 N.J.Super. 896 A.2d Rutgers, Shim v. 385 2006). Rutgers the case consider panel The remanded determining had over- totality of whether Shim the evidence presumption of non-domicile established regulatory come the was a dissent to in-state tuition. Because there entitlement Division, right. as Rutgers appeals to Court Appellate now this 2:2-l(a)(2). R.
II.
upon
Rutgers argues that
was based
substantial
its decision
unreasonable,
arbitrary,
record and was neither
evidence in the
capricious;
regulations
that establish
nor
statute;
fully
with the
consonant
of non-domicile
dependent
parents in
correctly
as a
of her
classified
Shim
Korea,
ineligible for in-state tuition.
rendering
legally
thus
holding
Broadcasting
v. New
Mead
Given our recent
Infinity
Corp.
(2006),
Rutgers’s
225,
N.J.
Commission,
owlands
providing
for the
as
of the State
public
status
“an instrumentality
purpose
Rutgers-The
N.J.,
higher
v.
State Univ.
education,"
N.J.Super.
Lipman
from a final decision
(App.Div.2000), it is clear that
441,
384 regulatory
Shim reiterates contentions that the vires; dependence of non-domicile ultra financial cannot be domicile; dispositive of and that she has satisfied the standards necessary to be afforded an in-state tuition rate.
III. reviewing Our an agency’s role administrative final Taylor, decision is In re limited. 158 N.J. A.2d 731 35 (1999). (1) agency’s We will not reverse an decision it unless: (2) arbitrary, unreasonable; capricious, or express it violated or (3) implied legislative policies; it offended the State or Federal (4) Constitution; findings on which it was based were not by substantial, supported credible evidence the record. Ibid. Generally, courts afford substantial deference agency’s interpretation charged of a statute that it is with enforc ing. R & R Mktg., Corp., 170, L.L.C. v. Brown-Forman 158 N.J. (1999). 175, court, however, 729 appellate A.2d 1 An way is “in no by agency’s bound interpretation of a statute its determina legal strictly Taylor, supra, 658, tion of a re issue.” In 158 N.J. at (quoting Mayflower Sec., 731A.2d 35 Sec. Co. v. Bureau 64 N.J. 93, 85, (1973)). That is standard of review against dispute which this must assessed.
IV. century, For over a has afforded residents more favorable tuition rates at state institutions than their non-resident (2d counterparts. See, e.g., Sp.Sess.), 190; 1932, § L. 1903 e. 1 L. 217, 1;§ c. N.J.S.A. 18A:64-13. Prior regulatory governed standard that eligibility in-state was absolute— only twelve months Jersey prior in New to enrollment See, (1973) (amended e.g., would suffice. N.J.AC. 9:5-l.l 661(a) (changing regulation light N.J.R. passage of N.J.S.A 18A:62-4); expired April 1, pursuant to Executive Order (1978)). No. 66 18A:62-4, the statute Legislature enacted N.J.S.A. provides: It here.
at issue 12 months for a within this State period have been resident Persons who higher to be education in a institution to enrollment public *10 resident who have been Persons for tuition purposes. in this State domiciled to be to are presumed 12 months enrollment this for less than prior within State to nondomiciled or be Persons presumed for tuition purposes. nondomiciliaries is status but whose domiciled, domiciliary to be who are persons presumed according to rules and challenged demonstrate domicile the institution, may by Higher Education. on regulations the Commission by for purpose established attending a educational of particular for the established solely purpose Residence act. of this not domicilefor the purposes institution is 18A:62-4.] [Y.J.S.A to the bill statement Committee Education
The Senate purpose: core identified its 18A:62-4 N.J.S.A became months to a for 12 prior student resident that a be Present law requires Higher cannot make exception of Education State Board enrollment. The to New regulation. who have moved individuals This this penalizes college. legal a enrollment a to student’s less than year prior established Higher could make an exception of Education Board bill, this the State Undеr legally in New Jersey. domiciled that they who can demonstrate individuals (February 1387, at 1 Bill No. to Senate Committee, Statement [Senate Education 20,1979).] analysis statute. any history critical to is legislative That 18A:62-4, Legislature enacting N.J.S.A. It underscores had a who difficult for student making it more had no intention in- establish year prior enrollment actually for a resided here Instead, was enact- that statute purposes. for tuition status state in-state might qualify for who of students the class ed to broaden rule of twelve-months bright line softening by tuition interpret must backdrop that we against that residency. It is statute.
V. bears the burden seeking in-state A student obligation, Apropos of that domiciled here. proving that she is established, as the 18A:62-4, Legislature enacting N.J.S.A. regarding presumptions departure, a set point of statute’s domicile.
386
A.
inference,
may
a
Unlike an
which is
conclusion that
fact,
proven
presumption
from a
a
drawn
a conclusion that the
Corby,
law directs must be drawn. State v.
28 N.J.
145
(1958),
Taylor,
A
grounds
.2d289
overruled
other
v.
State
(1966).
way,
N.J.
Put another
a
is a
mandatory
discharges
of producing
inference thаt
the burden
fact)
(the
(the
presumed
evidence as to a fact
when another fact
fact)
301;
Kim,
basic
has been established. N.J.R.E.
v.
Ahn
(1996).
423, 438-39,
essence, presumption
N.J.
678A.2d 1073
particular
compelling
has the effect of
conclusion in the absence
contrary
presumption,
evidence. To overcome a
evidence that
disprove
fact,
presumed
thereby
“tends to”
raising
a debatable
fact,
question regarding
presumed
the existence of the
must be
Kim, supra,
adduced. Ahn v.
N.J.
(1992) (stating once question is overcome fact must preponderance by decided based on of evidence adduced both parties). The trier of fact should thus consider all of the evidence resolving question the at issue. Ibid.
B. 18A:62-4, Under N.J.S.A. twelve months residence in Jersey Legislature New is the fact basic that the said has estab presumed lishes Accordingly, length the fact of domicile. of is preliminary inquiry. residence the If the twelve-month stan- the mandatory inference that satisfied, a there is dard has been mandatory contrary not, there is a domiciliary. If a student is non-domiciliary. a student is inference that the choices: it can either has two point, the institution At that domicile, challenge that it can accept student’s the challenge found in the last is of such gravamen status.5 The 18A:62-4, that “[residence which declares of N.J.S.A sentence attending particular edu of solely purpose the established In of this act.” purposes not domicile for cational institution that residence words, Legislature itself has declared other and in obtaining admission solely purpose of for the satisfy university will not college оr at a state state challenge who may a student Accordingly the institution statute. on that basis. twelve months for more than has lived here challenge, N.J.S.A 18A:62-4 declares Upon such a “may counterparts, non-domiciled student, presumptively like her regulations estab- rules and according to the demonstrate Education.” Higher Commission purpose lished for that so, has the position to do Thus, student, in the best who is applicable in the enumerated producing the evidence of burden particular, regulations. (a) a student 9A:5-1.1, may present of N.J.AC. and/or For the purposes being following domiciled in of as evidence primary
institution may require New Jersey: or evidence of withhold- income tax return New Jersey of the student’s 1. Copies legal guardian’s parent’s(s’) or ing tax, income copies of New and/or withholding (s’) tax. of income income tax return evidence long-term in this on a residence or a lease permanent 2. Evidence ownership legal guardian(s). parent(s) or student’s the student or the State by (b) supplementary an institution may require A student and/or may present following: being include the which may domiciled in New Jersey, evidence *12 license; driver’s Jersey 1. A New registration; motor vehicle 2. A New Jersey registration card; voter 3. A New Jersey who is be the student non-domicile, it will is of if the Obviously presumption challenger. the parent(s) 4. A from the or sworn, notarized statement student his or her and/or legal guardian(s) declaring in New Jersey; domicile 5. other evidence that the institution to deems Any supplementary necessary including, the student’s of in not claim domicile New but limited support Jersey, to, regarding parent(s) legal guardian(s) of a evidence the domicile student’s or parent(s) whose students domicile is determined the institution to be with their by guardian(s). legal or (c) If evidence of domicile is not available due to the loss or destruction of primary records other unusual the institution determination circumstances, make a may based evidence. exclusively supplementary (d) In the institution shall with the student’s every instance, records keep copies determining it the evidence used in to this section. pursuant [N.J.A.C. 9A:5-1.2.]
However, fact the mere that student hаs been chal lenged negate presumption Nothing does not the of domicile. statutory language suggests, obliquely, the even that the mere challenge of a presumption. existence an institution vitiates that The presumption student remains clothed until evidence is overcome, adduced is sufficient it. Once it overcome is fact, persuading student bears the burden the trier of without evidence, the benefit of the and on the basis of all the true, fixed, permanent that “her and principal home establish absent, Jersey ment” is New ... “whenever she is ... she 9A:5-l.l(a) returning.” has intention (defining See N.J.AC. domicile). paradigm inquiry. That is the for our
VI. argues first that Shim’s residence in as New domicile, minor does not count toward therefore the statute However, presumptively defines her as non-domiciled. the lan- guage support argument. statute does It states ” “persons year who have been resident for a Indeed, presumption. more entitled to the domicile specifically Senate Education Committee substituted the term “resident” for the term “domiciled” in amendment passage. statute to its The Committee did so in order to change presume persons “make it clear that intent of who have been resident for 12 purposes months as domiciled for
389 Committee Amendments Senate Senate tuition.” Statement for short, 7, 1387, May Adopted 1979. No. Senate Substitute for 18A:62- exactly it said in N.J.S.A what Legislature intended twelve has resided any person who 4—that here. presumed domiciled more is to be months or change minor cannot unemancipated may that an Although it be 98, Pieretti, Misc. will, 13 N.J. Pieretti v. of her own her domicile (Ch. Ct.1935), suggests that nothing in our law A. 589 as or that her residence a residence minor cannot establish such a after she statutory presumption count towards a minor cannot entitled to the Accordingly, it that Shim is age. is clear comes presumption of domicile. of the benefit
VIL Rutgers’ application of regulations and brings That us to 9A:5-1.1, “[depen- (f) which declares of N.J.AC. subsection Higher Education rules of the defined in the students as dent presumed Authority 9A:9-2.66 at N.J.A.C. Assistance Student legal or parent(s) their in which in the state to be domiciled students whose “[djependent and that guardian(s) is domiciled” Jersey are in New not domiciled legal guardian(s) is parent(s) or of obtain- temporary purpose for the in the State in New domiciled presumed not to be ing an education Jersey.” does not student who student as "any defines a N.J.A.C. 9A:9-2.6 dependent (a) (b) student ... for eligibility independent criteria listed
meet any 9A:9-2.6(c). in that is defined student status N.J.A.C. Independent status." (1) age December 31 of or older regulation "[i]s 24 as a student who years (2) a ward of the the court or was or ward of "[i]s an the award orphan year"; (3) the United Forces of age a veteran of the Armed 18”; "[i]s court until (5) (4) legal other than a individual”; "[h]as a married States”; "[i]s dependents (6) makes a aid administrator for whom financial a student "[i]s spouse”; unusual circum- reason of other determination independence by documented as Higher Act of Education Title IV of the as under stances provided regulations and rules.” implementing § its 1087w, and amended, 20 U.S.C. 9A:9-2.6(a) (b)& N.J.A.C. 9A:5-l.l(f) subject possible interpre to at least
N.J.A.C. two One, by Rutgers, adopted having tations. is that despite been months, dependent parents, resident for twelve if a student is domiciliary both of or even whom is not whom one of of New *14 Jersey, only statutory presumption she loses the but is also subject contrary regulatory presumption to the of non-domicile. problem and, interpretation goes The with that is that too it far thus, runs afoul the statute. N.J.S.A 18A:62-4 states that “persons residing Jersey period in for prior New a of 12 months ... presumed enrollment to be domiciled this State.” language N.J.S.A 18A:62-4. That offers no indication that some segment qualifying population student was intended Legislature subject confounding to be presumption. to a
Although rulemaking authority we defer to the of adminis 7:26B, agencies, Adoption trative In re N.J. A.C. 128 N.J. (1992) (stating regulations agency’s enjoy 608 A.2d that validity), presumptive “plainly regulation if a is at odds with the statute, [the Court] must set it aside.” In re Freshwater Wet Rules, lands Protection Act 180 N.J.
(2004). Rutgers’ interpretation Because regula would render the statute, plainly tion interpretation at odds with that cannot countenanced. 9A:5-l.l(f)
However, N.J.A.C. is amenable to alternative interpretation that statutory does not contravene the framework governing that conforms with presumptions. the law Subsec (f) reasonably tion can as intending be read to declare that dependence a evidence of student’s financial her out-of-state parents regarding is sufficient to raise a material issue of fact domicile, overcoming student’s presumption thus that flows from months of reading, twelve residence here. Under that which aligns with law on presumptions, playing field is evened case, prove evidence, the student must based on all the way. with no either (f) only interpretation
That is the of subsection regulations renders the statute and a coherent and seamless it, in New for a student who has lived whole. Pursuant domiciliary presumed to be a months to enrollment twelve is, fact, dependent on out- purposes. If that student for tuition genuine regard- parents, dependence creates a issue of-state presumption in her favor is neutralized. ing domicile and the contrary presumption give rise to the Importantly, that does not Rather, non-domiciliary. she is neither that she is a non-domiciliary. Rutgers domiciliary presumed a must then nor evidence, fairly, dispassionately consider all submitted fully, dependence of the student’s including but not limited to evidence preponderance If of the evidence parents. on out-of-state as defined in domicile is New indicates that student’s 9A:5-l.l(a)7, classify domiciliary must her as a then it N.J.A.C. purposes. in-state
VEIL case, lived In this established she Shim *15 Rutgers age Jersey years prior her enrollment at for four to 18A:62-4, Thus, presumed she was a eighteen. under N.J.S.A. domiciliary. Rutgers rejected presumption un that New 9A:5-l.l(f), flatly stating “[Reflec that der the terms of N.J.AC. undergraduate regulations ... applicable of the state tive parents, status of her to have the student ‘independent’ proves defined[.]” as that term is unless she herself in presumption of and Rutgers applying in non-domicile erred that, proffered notwith refusing evidence Shim to consider the parents, dependence on out-of-state standing her financial sure, fact, was, Jersey. the financial in New To be parents relevant support by her out-of-state were details of Shim’s domiciliary and created a fact issue that overcame to hеr status 9A:5-l.l(a) where a has his 7N.J.A.C. defines a domicile as "the place person establishment, which, and to true, fixed, home and or her principal permanent returning.” has the intention of NJ.A.C. absent, whenever he or she is he she 9A:5-l.l(a). definition of This definition is the same as the common-law (Sup.Ct.1944). Roth, v. N.J.L. domicile. See Kurilla However, presumption support in her favor. financial alone counter-presumption did not create a of non-domicile and thus Rather, Rutgers could not be outcome determinative. was re- quired fully fairly weigh proffered by all the other evidence so, way. Only the student with no doing either after Rutgers could have non-domiciliary, determined that Shim was a only weight and then if the of the on sup- evidence the record ported its conclusion.
By standing incorrectly it presump- what understood to abe limiting tion of non-domicile and consideration of Shim’s evidence parents’ to that which support, Rutgers bore on her financial interpreted regulations way in a that violated N.J.S.A. 18A:62- opportunity prove and denied Shim a fair her domicile. We judgment therefоre affirm Appellate of the Division and remand the light ease for reconsideration in principles to which we have adverted. RIVERA-SOTO, concurring part
Justice dissenting part.
Rutgers, University Jersey, statutorily State of New ais “public education[,]” defined higher institution[ ] N.J.S.A 18A:62-1, lineage royal traces its to a charter dated Novem- ber 1766. genesis, N.J.S.A. 18A:65-2. special From that its position Jersey’s system public higher education has “impressed been cemented as an public institution awith trust for higher people education of Jersey; of the state of New which instrumentality is the purpose of the state for the operating university.” the state Ibid. In furtherance of Rut- gers’s mission, Legislature public has “declared to be the policy of the State of New ... resources be and ... appropriated by continue to be adequate the State for the *16 conduct university high of a State with educational standards[.]” Recognizing Rutgers’s N.J.S.A 18A:65-27.I.b. taxpayer-funded status, Legislature the provided system also has for a two-tiered whereby of tuition subject signifi- “out-of-state student[s are] students.” cantly higher than that accorded tuition 433, N.J.Super. N.J., Lipman Rutgers-The v. State Univ. of 436, (App.Div.2000). sense, appeal requires that we examine this
In its narrowest not domi- plaintiff that Ezrina Shim was Rutgers’s determination thereby denying tuition status. Jersey, her in-state ciled in New law, whether, so, as a matter of doing must first determine we hence, and, statutory predicates for domicile plaintiff has met status; I that she did not. eligibility for in-state tuition conclude Further, plain lan- plaintiff predicates, those even if did meet regulations applicable statute with the guage reading of the governing Higher Education the determination Commission yields two eligible for state-resident a student is whether they harmonious with each other core conclusions: mandate; Rutgers’s determination Legislature’s with the pursuant to qualify in-state tuition status plaintiff failed to arbitrary, capricious, nor nor unrea- regulations was neither those sonable, must sustained. and therefore following conclusions. backdrop requires that I reach the
That
final
majority
appeal
“an
from a
concludes that
To the extent the
lie in
respect
a student’s domicile must
by [Rutgers]
decision
antе,
191 N.J.
2:2-3(a)(2)[,]”
pursuant to R.
Appellate Division
(2007),
4,
and that the standard
I. majority’s general agreement with the recitation I am born following. Plaintiff was emphasize I facts in this case. Thus, matriculated at of the date she 1984. as on November *17 2003, Rutgers in elapsed less than twelve months had since she Also, eighteen years despite requests turned old. several from Rutgers, plaintiff repeatedly provide sup- failed to information to port her claim that she was entitled to For in-state tuition status. admission, example, original application plaintiff in her for claimed By to she entitled in-state tuition status. a letter dated 5, 2003, Rutgers plaintiff Rutgers’s obligation March advised to status, plаintiff’s important determine a “determination is [that] assessment, only for tuition but also for federal and state aid programs[.]” [plaintiffs] legal That also “[i]f letter cautioned that residency your status remains at unresolved the time term bill due, payment you charges is will be assessed non-resident until a ruling Rutgers final requests is made.” made that “[a]ll clear for residency in-state status must be submitted to the start of classes.” result, respond.
Plaintiff did not As a on June Rutgers’s university undergraduate again office of admissions plaintiff, exhorting wrote to required her to submit the informa- measure, timely tion in a large plaintiff manner. ignored also response 30, that July letter. Her sole consisted of a letter dated youth 2003—six high pastor weeks later —from her “senior at in Philadelphia” Rutgers] Emmanuel Church who “assure[d [plaintiff] has maintained [her aunt’s and uncle’s] address [in Mount Laurel.]” received that letter on and, August very day, responded plaintiff, next to acknowledged receipt clearly explained the letter and plaintiff legal requirements had not met the to claim in-state Rutgers repeated yet tuition status. oncе more its earlier warn- ings plaintiff: your residency to “if status is unresolved at the payment due, you time required pay will be the non-resident Again, plaintiff nothing. tuition rate[.]” did Plaintiff matriculated for the Fall 2003 semester and started attending Submitting partially completed Residency classes. Analysis 2003, plaintiff finally Form dated attempted November respond, only part, Rutgers’s albeit repeated requests for plaintiffs information on which to request base decision on for in-state Significantly, plaintiff tuition status. did not “claim New Jersey residency for purposes” any [t]uition of the stated Higher reasons defined the Commission on Education.1 Plain- tiff Residency Analysis scratched out section of the Form and, instead, enclosed a supported series of items she asserted *18 supplemented claim. Plaintiff her submissions on November 2003.
Rutgers promptly acknowledged receipt plaintiffs of submission request and denied her for residency “in-state status for tuition purposes[,]” concluding plaintiff that dependent because parents residents, Jersey who are not New she was “deemed to be a non-residеnt of New purposes.” for tuition Rut- gers plaintiffs also argument addressed regulations that the of the Higher Commission on conflict with “N.J.S.A Education were 18A:62-4, the state law residency which defines pur- for tuition view, poses.” Rutgers’s “N.J.S.A 18A:62-4 is silent as to the dependent Rutgers explained domicile of a student.” statutory “[a]bsent a statement about the of a student, dependent there can be no conflict between the statute rather, regulations; regulations the state are indicative of regulatory authority reasonable exercise of the agency of a state interpret to Noting plaintiff the statute.” had “failed to provide required regarding parental disclosure financial assis- tance” and that “evidence of residence in New for the sole purpose attending presence is, school and a the state itself, insufficient to purpose establish residence for the of in- tuition[,]” Rutgers state plaintiffs request. denied age These are that the student "[i]s 24 or older December 31 of years the award [i]s or ... an or ward of the year; court or was a ward of the orphan age 18; court until [i]s or a veteran of the Armed States; Forces of the United or graduate [i]s a or student; [i]s individual; or a married [h]as professional legal other than a [i]s a student for whom a dependents financial aid spouse; administrator makes a documented determination of reason of independence by Higher other unusual circumstances as under Title IV of the Education provided implementing regulations § Act of as amended, 1087w, 20 U.S.C. and its 9A:9-2.6(a)l, (b)l (b)6. and rules." NJ.A.C. to denying Rutgers’s determination timely appeals of
Plaintiff filed status,2 Responding of which was denied. each her in-state tuition combining common sense appeal pointedly plaintiffs first to considerations, Rutgers reasoned policy public with makes regulation’s students perfect rule of [t]he dependent imputed discretion, of administrative in a reasonable exercise Commission, sense. The undergraduate on their recognized students are financially dependent that most that fund state who taxes Furthermore, parties pay parents parents. regulations, the residence parents Thus, applicable universities. pursuant undergraduate not the residence of the status, the tuition student dictates funding universities would be for the state If this rule did not apply, student. while their in-state tuitions parents students would be able pay because risk, an incentive for out-of-state This would create taxes in New Jersey. do pay in-state tuition in New obtain Jersey solely to establish an address applicants paying taxes that avoid the New Jersey support status while their parents his or her a student who remains Moreover, financially dependent upon university. which connect that student to the parents’ has not severed the bonds truly parent cannot establish a domicile continue to exist the student and if these bonds home, in New Jersey. you have neither “[djespite prompting, Rutgers explained that regarding parental financial as- required provided the disclosure yourself independent[,]” which led sought to declare sistance nor *19 yourself you be unable to declare Rutgers to “believe that would independent.”
II. A. residency in majority while first concludes The determining cоunted towards plaintiff still a minor should be Rutgers's governing According in-state for tuition to residency pur- policy made determination from the initial determination any poses, "[alppeals change will be no a for a status accepted after a student request by date of notification of such determination than three months after the any later Rutgers's decision Furthermore, after her that is shortly receipt appealed." Rutgers's to denying status, made her in-state tuition inquiry directly plaintiff undergraduate dated advised, and was a letter admissions by office of university lodged and that it where must be December the location any appeal 4, 2003] [December from the date of be submitted within three months my "must letter." statutory requirement whether she meets the domicile New purposes. agree. for in-state tuition I do not Jersey’s In-state tuition at New public determinations institu- higher 18A:62-4, N.J.SA governed by tions of education are provides which in full that Persons who have been resident within this State for a 12of months period prior higher
to enrollment a institution of education to public are be presumed domiciled in for tuition this State Persons who have been resident purposes. within this State for less than 12 to months enrollment are to be presumed nondomiciliaries for Persons purposes. presumed be nondomiciled who are persons presumed domiciled, but whose status is domiciliary challenged according by institution, demonstrate domicile rules and may regulations Higher for established the Commission on Education. purpose by attending Residence established for the a solely educational purpose particular institution is not of this act. purposes Thus, triggering event for a determination of whether a is to an student entitled in-state tuition discount is the student’s 18A:62-4, N.J.SA Legislature provided domicile. two in making sources to be a used that determination: either statuto- ry presumption, or demonstrating a mechanism for domicile—the regulations by purpose “rules and for that established the Com- Higher application mission on Education” —when the statu- tory presumption by challenged is either the student institution. analytical
Hewing statute, to that structure of the we are сalled plaintiff statutory on first to consider whether is entitled to only of domicile. It is after that is threshold breach- may implementing ed that we address whether the statute and its regulations harmony.
B. plain reading requires Plaintiff that a asserts of the statute domiciliary conclusion that Jersey. she to be of New it, plaintiff N.J.S.A 18A:62-4 requires As all sees for a determina- *20 Jersey “[p]ersons tion of New domicile is that the ... have been period resident within this State for a of 12 months higher public enrollment in a institution of Plaintiff education[.]” 398 that, in uncontradicted that she was resident because it is
399 domicile, person’s rules for the determination of a the answer to question Following trend, general must “no.” the consistently has held that [t]he domicile of child follows of is the the domicile the father. It settled that juris assigned legitimate mi persons a of domicile a child operation law; regardless takes the of its father at domicile of birth; where the child may actually during live, domicile of the father is that of the child minority. (Middlesex [A v. M and C, 74 Ct.1962).] N.J.Super. 104, 110, 180 A.2d 541 County parallel high context of a public free school education of a minor, it unemancipated has been held that “the domicile of an parent, guardian.” child is the domicile of the custodian or P.B.K. 419, 427, Bd. Borough of Tenafly, v. N.J.Super. 343 of Educ. of Pieretti, (App.Div.2001). also Pieretti See v. 13 102, (Ch. Ct.1935) 98, (holding N.J. Misc. A. 176 589 that “the minor, legitimate domicile of a unemancipated will whose cannot is, residence, with of living, concur the fact if his father be father; of change domicile that a cannot minor his domicile of will”); Renner, 765, 749, his own v. Renner 13 N.J. Misc. 181 A. (Ch. Ct.1935) (same); Rinaldi, 191 Eq. 94 Rinaldi v. N.J. (Ch. Ct.1922) (same); Kimble, 454,
The
principle
general
“It is the
rule that an
clear:
unemancipated
acquire
infant cannot of
own volition
its
new
,an
Adoption
infant,
domicile.” In re
22 N.J. Misc.
Susan —
181,
Ct.1944)
185,
(Orphans
(citing
37
645
A.2d
In re Estate of
Russell,
313,
(Prerog.Ct.1902);
64
Eq.
N.J.
Whether
N.J.S.A. 18A:62-4
provisions of
cation are consonant with the
requires
principles:
the
of established
invocation
general
reviewing challenged
[W]e
forth the
set
principles
rule. We start
give great
agency’s
with
must
the
we
to an
premise
deference
interpretation
enforcing
its rules
the statutes for
it
which
implementation
responsible.
recognizes
“agencies
Such deference is
because it
appropriate
have
regulations dealing
to enact
specialized expertise necessary
with technical matters
and are
well
to
read and
evaluate the factual and
particularly
equipped
technical
rulemaking
agency
issues that
would invite.”
rules are
Consequently,
accorded
challenging
reasonableness,
and the
validity
has
party
proving
burden of
is at odds with
rule
the statute.
a rule will be set aside if it
Despite
deference,
is inconsistent with the
agency
guise
statute
it
That
not under
purports
interpret.
is,
may
give
greater
language
the statute
than
if
Thus,
effect
its
allows.
interpretation
any
regulation is
at odds with the
we must
it
statute,
set
aside.
plainly
[In re
Rules,
Freshwater Wetlands Prat. Act
Assistance
N.J.A.C. 9A:9-2.6
to be
in the
Authority
presumed
domiciled
parent(s)
legal guardian(s)
in which
state
their
or
is domiciled. Dependent
parent(s)
legal guardian(s) is
students whose
not
New
are
domiciled
obtaining
to
inbe
the State for the
presumed
an education
temporary purpose
not to
be domiciled New
Jersey.
9A:5-1.1(f).]
[N.J.A.C.
Higher
Authority regulations,
The
Education Student Assistance
9A:9-2.6(c),
“dependent
“any
N.J.A.C.
as
define
student”
student
Roth,
That definition is
almost
from
v.
verbatim
Kurilla
132 N.J.L.
adopted
(Sup.Ct.1944).
213, 215,
who does not meet status[,]” Rutgers very eligibility independent criteria student Residency precise Analysis Form and the explicitly on its listed plaintiff to answer for obvious reasons: questions plaintiff refused independent student satisfy for admittedly did not the criteria (b). 9A:9-2.6(a) forth N.J.AC. status set entirely with 18A:62- regulations Those consonant N.J.S.A are terms, By delegates to the the statute Commission 4. its own authority scope any chal- Higher Education define that there lenge to It is claimed a domicile determination. regulations; any adoption relevant irregularity in the regulations alleged exceed all that is is that those somehow Instead, agree. regulations scope those of the statute. I cannot sensibly necessary reasonably to overcome define what is statutory challenge or a to a presumption of non-domicile either domicile, nothing statutorily presumed nothing more and less. regulations harmony importantly, with More those and, therefore, provisions voided of N.J.S.A 18A:62-4 cannot be as ultra vires. proofs regulations application
The of those adduced concluded, preliminarily, least Rutgers demonstrates thаt Rutgers plaintiff’s presence in she enrolled at before statutory may her to the of domicile. have entitled statute, however, Rutgers, chal- explicitly as authorized again, re- lenged plaintiffs point, At that the statute domicile. plaintiff quires that [her] —not —“demonstrate regulations according established [the] rules purpose by Higher the Commission on Education.” N.J.S.A meeting (emphasis supplied). failed in 18A:62-4 Plaintiff burden. however, differently. majority, approaches matter Ad
The this *24 legislative history, majority ex dressing the the first statute’s any “legislative history to plains 18A:62-4’s is critical that N.J.S.A disagree analysis A.2d at I of the statute.” Ante at 472. approach. analysis applied with in that The hierarchical to be construing a is statute well-settled: Legislature’s goal interpreting
The intent is when a statute and, the paramount generally, language. indicator of the the best that intent is We ascribe to statutory meaning significance, their the words and read them in statutory ordinary and give legislation context with related so as to sense to the as a whole. It provisions is not the function of this a of Court to rewritе enactment the plainly-written Legislature Legislature something or intended than other presume language. of We cannot in additional expressed by way plain write Legislature drafting which the omitted in own enactment, its qualification pointedly engage conjecture meaning or circumvent surmise which will plain act. as Our is to construe and the statute enacted. duty apply A court should not resort to extrinsic aids when the interpretative statutory language unambiguous, is clear and to On and one susceptible only interpretation. ambiguity language the other if there is leads to hand, more statutory including than one turn to evidence, we extrinsic plausible interpretation, may legislative committee We construction. history, reports, contemporaneous may reading also resort to if to an extrinsic evidence a the statute leads absurd plain language. result ifor the overall is at odds with statutory scheme the plain begins language Our therefore, with the the statute. analysis, plain (2005)(citations, Penn, v. 183N.J. 874A.2d 1039 internal [DiProspero 492-93, editing supplied).] marks marks and quotаtion omitted; emphasis ambiguous. N.J.S.A 18A:62-4 is no It that one wise states who has been a resident of this State for twelve months to and, hence, presumed domiciliary is to enrollment at be a law, plaintiff entitled a to in-state status. As matter of simply legal qualify did not as she not have been resident could a event, purposes any a while she was minor. unambiguous language N.J.S.A 18A:62-4 addresses what is to be (a) applicant by if an presumed domiciliary done either is reason (b) challenged by Rutgers, but that domicile is is presumed domiciliary by residency: to be reason of “Persons presumed persons nondomiciled or who to be domiciled, domiciliary by status challenged but whose institution, may according regu demonstrate domicile rules purpose by Higher lations established for that the Commission on Here, Rutgers plaintiff Education.” determined that failed to “according regulations rules demonstrate domicile estab Education[,]” Higher purpose lished for that Commission 18A:62-4, a that must be sus- .A. determination N.J.S *25 404 (1) unreasonable; arbitrary, capricious, or “unless: it was
tained (3) (2) express legislative policiеs; it implied it or offended violated (4) Constitution; findings or on which it or Federal the the State substantial, by supported were not credible evidence was based Ante A.2d at record.” at 924 471. the record, Rutgers’s it that In this cannot be said denial in-state plaintiff arbitrary, capricious, unreason- tuition status able; statutory interpretation, it on our canons of cannot be based policies, Rutgers’s any legislative violated said determination express implied; it cannot be that this determina- whether said any provision; it cannot be tion offended constitutional and said supported by Rutgers’s the record evidence. decision was instance, duty our is clear: are oath-bound to In such we agency. the action of administrative sustain the IV. explained Judge Wefing’s For the reasons both here and Division, Appellate and dissent Shim v. clear well-reasoned N.J., 200, 208-11, Rutgers-the N.J.Super. 385 State Univ. J., (Wefing, (App.Div.2006) dissenting), I would A.2d reverse judgment Appellate Division and reinstate denying application by Rutgers plaintiffs determination made year To in-state tuition status for the academic 2003-2004. majority differently, respectfully I extent the rules dissent.4 LONG, For Justice ZAZZALI and Justices affirmance —Chief LaVECCHIA, ALBIN, WALLACE HOENS —6. part; part For concurrence in dissentment in —Justice RIVERA-SOTO —1. majority The relief afforded remand the matter to "for light majority] ha[s] to which [the reconsideration adverted." principles nothing highlighting majority's 924 A.2d in the
Ante
at 476.
It bears
Rutgers,
result;
decision commands
in the
exercise of its
any
proper
particular
discretion,
administrative
revisit
may
authority
plaintiff's application
wanting.
still find it
notes
1999,
statutory
since
she satisfied
twelve-month
this State
requirement.
Although
superficial appeal,
argument does not
possessing
in
in
case
scrutiny.
closer
Imbedded
the facts
this
is
withstand
that,
Jersey, plaintiff was but fourteen-
when she relocated to New
eighteen,
years-old
age majority age
of
and did not reach the
—
shortly
applied
before
for admission
N.J.S.A. 9:17B-3—until
she
legally
domi-
Rutgers.
a minor is
unable to establish
Because
cile,
plaintiff’s
birthday
any period
residency prior
eighteenth
of
Further,
plaintiff
simply
because as of the time
is
irrelevant.
matriculated,
classes,
tardily applied
even
started
in-statе
status,
yet
she
had twelve months of
had
adult,
Jersey
qualify
application
as an
she does not
for the
New
statutory presumption.
legal
place
“Domicile is
strict
sense ...
where [a
‘a
true, fixed,
person]
permanent
principal
has his
home and
estab
lishment,
which,
absent,
inten
and to
whenever he
he has the
returning,
present
tion of
from which he has no
intention of
”
Jacobs,
189, 193-94,
moving.’
N.J.Super.
re
A.2d 432
315
717
(Ch.Div.1998)
Neeld,
N.J.Super.
v.
(quoting Cromwell
(App.Div.1951)).
has long
A.2d 337
It
law
been
times,
“[e]very person
person
a domicile at all
no
has
has
any
one
In re Estate
more than one domicile
time.”
Gillmore,
87,
N.J.Super.
(App.Div.),