706 F.2d 796 | 7th Cir. | 1983
Dissenting Opinion
dissenting.
The plaintiffs in this case are three former students of the University of Wisconsin at Madison who sought to be classified as Wisconsin residents for tuition purposes during 1971 and 1972, after residing in the state for more than one year. Wisconsin
In determining bona fide residence, filing of state income tax returns in Wisconsin, eligibility for voting in this state, motor vehicle registration in Wisconsin, and employment in Wisconsin shall be considered. Notwithstanding par. (l)(a), a student from another state who is in this state principally to obtain an education will not be considered to have established a residence in Wisconsin by virtue of attendance at educational institutions.
Wis.Stat. § 36.16(3) (1971) (current version at Wis.Stat. § 36.27(2)(e) (1979-80), making the rebuttability of the presumption explicit). The plaintiffs sought to show bona fide residence in accordance with this section by demonstrating that they met all or nearly all of the nonexclusive listed criteria, and by submitting additional evidence of bona fide residency such as local home ownership, membership in local organizations, or the reclassification of a spouse as a resident. Each plaintiff was at least initially denied reclassification, and each challenged the procedure by which residency determinations are made. On this appeal the only issue is whether the due process clause of the fourteenth amendment requires the Appeals Committee, which reviews determinations of residency by the Registrar, to provide to unsuccessful applicants a statement of reasons for denial. Because I disagree with the majority’s conclusion that no statement of reasons is required, I dissent.
Analysis of every due process claim requires a two-part inquiry: first, the identification of a life, liberty, or property interest entitled to procedural protection, and second, the determination of what process is due before the government may take action affecting that interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). No one disputes that in the present case the plaintiffs’ claimed entitlement to lower tuition constitutes a property interest; the sole question before the court is what process is due. Although the standards for identifying appropriate procedures are inexact, I believe that Supreme Court decisions requiring statements of reasons as the minimal degree of process necessary for determining factual issues control the result in this case.
The framework for determining the necessary level of procedures was explicated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): a court must consider the nature and weight of the private and public interests involved, and the- value of additional procedural safeguards. The individual interest in not paying the difference between nonresident and resident tuition rates, even if considered in one-semester increments (although I wonder whether the state could by this reasoning slice the plaintiffs’ interest ever finer simply by allowing continuous reclassification requests), is weightier than the majority admits. Although the amount of money at issue may not be great on an absolute scale, the court must consider its importance to the individual. See id. at 341, 96 S.Ct. at 905; Goldberg v. Kelly, 397 U.S. 254, 261-63, 90 S.Ct. 1011, 1016-18, 25 L.Ed.2d 287 (1970). Requiring a resident student to pay the nonresident rate may delay or foreclose educational opportunities, which are an important interest even if not a “fundamental right.” See Goss v. Lopez,
The defendants argue, however, that the state has a further interest in not providing statements of reasons: they fear that if the residency standards are made so explicit, students will be able to comply and thereby thwart the state’s interest in charging them the nonresident rate. This argument raises the third Mathews v. Eldridge consideration, the value of the proposed procedure. The short answer to the argument would seem to be “so what?”: if students do comply with the criteria for residency the state has no legitimate interest in classifying them as nonresidents, as Vlandis v. Kline, 412 U.S. at 448-49, 93 S.Ct. at 2234-35, demonstrates. Indeed, one of the benefits of statements of reasons generally is that they enable people to conform their conduct to the law’s requirements. Cf. Mathews v. Eldridge, 424 U.S. at 346, 96 S.Ct. at 908 (procedures that include a statement of reasons for the cutoff of disability benefits satisfy due process because they “enable the recipient to ‘mold’ his argument to respond to the precise issues which the decisionmaker regards as crucial”). But the defendants argue that this answer mistakes the object of the administrative inquiry: the Wisconsin statute focuses on the student’s intent, which could be falsified if the Appeals Committee were required to evaluate it by a rigid list of objective indicia. The defendants stress that the inquiry demanded by the statute cannot be so confined because subjective intent is nebulous and not quantifiable.
I find this argument unpersuasive for several reasons. First, the defendants’ assumption that a statement of reasons would have to specify objective criteria of intent and thereby attempt to quantify the unquantifiable is unwarranted. The decision-maker need not build up a hypothetical successful case, but only specify the faults in the actual case that make it unsuccessful. The statute’s list of four possible indicia of residency (payment of state income tax, voter registration, motor vehicle registration, and local employment) indicates that
Second, the object of the inquiry — the student’s intent — is subjective only on the part of the student, not on the part of the decisionmaker; the issue is factual, not discretionary. In many cases involving similar kinds of factfinding the Supreme Court has held that statements of reasons are required as the skeletal level of process due. See id. at 581, 95 S.Ct. at 739 (due process “requires at least [the] rudimentary precaution ]” of, inter alia, a statement of reasons before school discipline is imposed); Wolff v. McDonnell, 418 U.S. at 563, 94 S.Ct. at 2978 (revocation of prisoner’s good-time credits); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) (revocation of probation); Morrissey v. Brewer, 408 U.S. 471, 483-84, 489, 92 S.Ct. 2593, 2601, 2604, 33 L.Ed.2d 484 (1972) (revocation of parole); Willner v. Committee on Character & Fitness, 373 U.S. 96, 105, 83 S.Ct. 1175, 1181, 10 L.Ed.2d 224 (1963) (bar certification). See also Mathews v. Eldridge, 424 U.S. at 346, 96 S.Ct. at 908 (procedure of providing statements of reasons satisfies minimal process due). The minimal nature of the process demanded in these cases is especially notable in those involving prisoners, because the Court has held their liberty interest to be so narrow as to require only abbreviated procedures. Hewitt v. Helms, - U.S. at -, 103 S.Ct. at 871. See also 2 K. Davis, Administrative Law Treatise §§ 13.1-13.15 (2d ed. 1979) (urging a requirement of a statement of reasons even when very little process is due); Rabin, Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement, 44 U.Chi. L.Rev. 60, 74-93 (1976) (same). In most of thesé cases the central factual inquiry was not crisp or quantifiable. See, e.g., Morris-sey v. Brewer, 408 U.S. at 483-84, 92 S.Ct. at 2601 (distinguishing discretionary and factual elements of decisions to revoke parole). But only when the Court has characterized a decision as purely discretionary has it held that no statement of reasons is required, because then the value of that procedure is diminished. See Hewitt v.
Finally, statements of reasons have other social values that weigh in the Mathews v. Eldridge balance. In addition to the “instrumental values” of reviewability, clarity, and consistency, furnishing such statements would promote “process values” by fostering a sense of participation and fairness. In short,
this requirement would direct the deci-sionmaker’s focus “to the relevant ... criteria and promote more careful consideration of the evidence. It would also enable [students] to detect and correct inaccuracies that could have a decisive impact. And the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness, that the [Appeals Committee’s] decision is not capricious.” ... A written statement of reasons would facilitate administrative and judicial review and might give the [student] an opportunity to [alter] his conduct.
Hewitt v. Helms, - U.S. at -, 103 S.Ct. at 883 (Stevens, J., dissenting) (footnote omitted) (quoting Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. at 40, 99 S.Ct. at 2120 (Marshall, J., dissenting)). See also Dunlop v. Bachowski, 421 U.S. at 572, 95 S.Ct. at 1860 (“a ‘reasons’ requirement promotes thought by the Secretary and compels him to cover the relevant points and eschew irrelevancies, and ... assure[s] careful administrative consideration”); Wolff v. McDonnell, 418 U.S. at 565, 94 S.Ct. at 2979 (“the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights have been abridged, will act fairly”); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) (noting “the feeling, so important to a popular government, that justice has been done”) (footnote omitted); L. Tribe, American Constitutional Law 502-03, 554 (1978); Summers, Evaluating and Improving Legal Processes — A Plea for “Process Values,” 60 Cornell L.Rev. 1 (1974); Tribe, Structural Due Process, 10 Harv.C.R.-C.L.L.Rev. 270 (1975). See generally Morgan, The Constitutional Right to Know Why, 17 Harv.C.R.C.L.L.Rev. 297 (1982). These values are substantial enough to outweigh the defendants’ interest in avoiding administrative expense and bother, because “ ‘the Constitution recognizes higher values than speed and efficiency,’ ” Vlandis v. Kline, 412 U.S. at 451, 93 S.Ct. at 2236 (quoting Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972) (footnote omitted)), and the defendants’ interest is modest.
For these reasons I respectfully dissent. Because the majority does not reach the defendants’ contention that, apart from the merits, they enjoy qualified immunity from damage claims like the present one, I pass over that issue.
This is presently a civil action only for damages. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Before me are cross motions for summary judgment.
The only claim remaining upon remand from the court of appeals is that defendants, members of the Committee on Appeals at the University of Wisconsin-Madison (the Committee), failed to state reasons for their denial of classification of plaintiffs as bona fide residents of Wisconsin for tuition purposes and, in doing so, violated plaintiffs’ right under the due process clause of the fourteenth amendment of the Constitution of the United States. Lister v. Hoover, 655 F.2d 123 (7th Cir.1981).
Facts
For the purpose of deciding the cross motions for summary judgment, I refer to those facts incorporated in my prior ruling on plaintiffs’ motion for partial summary judgment, under the heading “Facts,” as to which there is no genuine issue. Lister v. Hoover, No. 71-C-409, slip op. at 3-20 (W.D.Wis., May 9, 1980).
Opinion
“ ‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), rehearing denied, 368 U.S. 869, 82 S.Ct. 22, 7 L.Ed.2d 70 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817 (1951). Determining whether due process requires a statement by the Committee of its reasons for denying resident status for tuition purposes requires the consideration and balancing of three distinct factors: first, “the private interest that will be affected by the official action”; second, “the government’s interest, including the function involved and the fiscal and administrative burdens that the statement would entail”; and third, “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any,” of a statement of reasons. Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903.
Private interest affected
Residents of Wisconsin enjoy a property interest in the tuition advantage available to them. Lister v. Hoover, No. 71-C-409 (W.D.Wis., May 9, 1980); see Vlandis v. Kline, 412 U.S. 441, 453, 93 S.Ct. 2230, 2237, 37 L.Ed.2d 63 (1973). The property interest at stake is limited to the difference between resident and nonresident student tuition for a single semester, because the student has an opportunity each semester to seek reevaluation of nonresident status. This, difference varied from $770 for autumn 1970 to $780 for spring 1972.
It is important to note what interests of plaintiffs are not at stake. Even if there were a right to a higher education, which there is not (Sturgis v. State of Washington, 368 F.Supp. 38 (W.D.Wash. 1973), aff’d mem. 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973); see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), rehearing denied, 411 U.S. 959, 93
S.Ct. 1919, 36 L.Ed.2d 418 (1973)), plaintiffs are not permanently disabled from taking courses. This case does not involve a denial of the opportunity to enter a certain profession. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) (holding that petitioner was denied due process when he was denied admission to the Bar without a hearing on the charges filed against him). Finally, denial of nonresident status does not bestow a badge of disloyalty or infamy or otherwise stigmatize plaintiffs’ reputation, with an attendant foreclosure from other employment or educational opportunities. Cafeteria Workers v. McElroy, 367 U.S. at 898, 81 S.Ct. at 1750; see Wieman v. Updegraff, 344 U.S. 183, 190-191, 73 S.Ct. 215, 218, 97 L.Ed. 216 (1952); Joint Anti-Fascist Committee v. McGrath, 341 U.S. at 140-141, 71 S.Ct. at 632.
However large and important the tuition reduction may seem to students on a tight budget, and possibly without income, in a constitutional perspective plaintiffs’ interest is slight. In Michelson v. Cox, 476 F.Supp. 1315, 1321 (S.D.Iowa, 1979), responding to a claim that a state university’s review committee’s failure to render detailed findings of fact in denying to reclassify student plaintiffs as residents for tuition purposes violated the due process clause of the fourteenth amendment, the court stated:
... the property interest that plaintiff or any University of Iowa student has in the difference between the resident and nonresident tuition rate is slight both in an absolute monetary sense and relative to the other types of rights protected by the Constitution.
Plaintiffs’ interests are not nearly as significant as the expectation of conditional freedom on parole urged by plaintiffs as an analogy.
Government interest and function
The governmental interest involved is the state’s “legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.” Vlan-dis v. Kline, 412 U.S. at 453, 93 S.Ct. at 2237. This interest is of broad significance because it implicates not only the financial resources of the state but also the opportunity of all Wisconsin high school graduates to obtain a college education.
The governmental function involved is the state’s fiscal management of its own internal affairs. Because a student will often be required to pay nonresident tuition while awaiting action by the Committee, the Committee’s reversal of a Registrar’s decision of nonresident status often requires disbursement from the state treasury. Cf. Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976). Should the Committee affirm the Registrar’s decision, the student must make a claim to the state legislature for refund of tuition overpayment under Wis.Stat. § 285.01 before filing an action on the debt in court. Lister v. Board of Regents, 72 Wis.2d at 297, 240 N.W.2d 610.
Section 285.01 constitutes a consent by the state to be sued, a waiver of sovereign immunity, upon the condition that the claim be presented to the legislative claims committee. Lister v. Board of Regents, 72 Wis.2d at 297, 240 N.W.2d 610. This waiver suggests that in ordering a refund pursuant to reclassification, the Committee function is analogous to one which is traditionally immune from external interference.
Cases in which the government’s control of others’ activities is challenged are distinguishable on this point. From a practical perspective, the government need not regulate the commercial exchange of green stamps (Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972)) or stockyard rates (Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938)), for example, but it must regulate its treasury.
The burden imposed on the government by a requirement of a statement .pf reasons would presumably include the preparation of at least some minimal findings of fact in each case and some explanation of the reasoning by which the committee reached its decision on the basis of those facts. Because of the large number of appeals (four hundred eighty-eight in the two year period in question) and the large number of facts submitted by students in support of their appeals, “the preparation of detailed findings of fact in every case would entail considerable administrative expense and delay.” Michelson v. Cox, 476 F.Supp. at 1322.
Because analysis of a student’s intent as to bona fide residency is “incapable of purely objective definition” (Lister v. Hoover, 655 F.2d at 126), often the Committee’s reasons could not be expressed in a few objective factors or succinct principles. In order not to mislead, the Committee would be obliged to indicate somehow the weight to be given any objective factor mentioned. This would be a demanding task, because the “relative weight to be given each objective factor is not capable of quantification.” Hooban v. Boling, 503 F.2d 648, 652 (6th Cir.1974) cert. denied, 421 U.S. 920, 95 S.Ct. 1585, 43 L.Ed.2d 788 (1975). An adequate explanation would also entail a discussion of the student’s demeanor and other facts affecting credibility. This would involve further administrative burdens and delay. These administrative burdens necessarily have an attendant financial cost.
In sum, a requirement of a statement of reasons would impose significant administrative and fiscal burdens on the state in the management of its own internal fiscal affairs, an essential function traditionally immune from interference.
Probable value of requirement of statement of reasons
Analysis of the probable value, if any, of a statement of reasons, begins with an evaluation of the risk of an erroneous deprivation of plaintiffs’ property interest through the procedures now used. There are presently four opportunities for reclassification, each before a different body of decision-makers. Reconsideration of initial classification may be sought not only from the Registrar and the Committee, but from two other, independent branches of state government: the legislature and the state courts. The student has an opportunity to present to the Registrar and the Committee evidence not considered in the original classification. Before the Committee, at least, the student has an opportunity to appear and evidence his demeanor, credibility and any other subjective manifestations of intent. The Committee is not limited to a review to determine whether the Registrar’s decision is arbitrary and capricious or not supported by any substantial evidence.
Because the central issue of intent is subjective, the risk of an erroneous deprivation of plaintiffs’ interests is incapable of objective qualification. I am convinced, however, that the four occasions for reclassification before several independent bodies, and the opportunities to present new evidence and to be heard, reasonably reduce the risk of an erroneous deprivation to a slight chance.
Plaintiffs assert that a statement of reasons would reduce the risk of an erroneous deprivation in three ways: first, an explanation of reasons would permit plaintiffs to make better presentations and thus diminish the risk of erroneous deprivation in subsequent semesters; second, a requirement that reasons be given would lead to a higher incidence of correct decisions by the very body giving the reasons; third, an explanation of reasons would provide a sounder basis for review of the Committee’s decision.
Even if guiding future conduct is within the concerns of due process, intent remains the dispositive issue in a determination of residency. Informing a student that “A” and “B” are lacking, so that the student can
proceed to do “A” and “B” may well leave his or her intent unaffected. Evidence of changed conduct in response to an earlier Committee statement of reasons would have an uncertain effect on the accuracy of Committee decisions in subsequent semesters.
Because there is no substantial factual dispute in plaintiffs’ case, and in residency cases in general, the utility of findings of fact would be quité small in practice, in minimizing erroneous decisions by the Committee itself. Michelson, supra, 476 F.Supp. at 1322.
Legislative or judicial review of decisions is not an essential ingredient of the due process guaranteed by the fourteenth amendment. There is, for example, no federal constitutional right to state appellate review of state criminal convictions. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), rehearing denied, 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956); Ross v. Moffitt, 417 U.S. 600, 610-611, 94 S.Ct. 2437, 2443-2444, 41 L.Ed.2d 341 (1974). “Due process of law guarantees ‘no particular form of procedure; it protects substantial rights.’ N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 351 [58 S.Ct. 904, 913, 82 L.Ed. 1381]” (1938); Mitchell v. W.T. Grant Co., 416 U.S. 600, 610, 94 S.Ct. 1895, 1901, 40 L.Ed.2d 406 (1974). Even when, as here, legislative and judicial review of the Committee’s decisions is provided, the subjective nature of the dispositive issue of intent means that the risk of erroneous decisions by these reviewing bodies is unlikely to be significantly reduced by a Committee statement of reasons.
In sum, the plaintiffs’ property interest is relatively slight; the government’s interest is significant; the governmental function is essential and traditionally immune from interference; to impose the requirement that reasons be given would be to impose significant administrative and fiscal burdens on the state; and the risk of erroneous decision under the procedures now used is reasonably minimized.
My conclusion that due process does not require that the Committee state reasons for a denial of resident status for tuition purposes is supported both by Michelson v. Cox, 476 F.Supp. 1315, holding that due process does not demand findings of fact for denial of resident tuition status, and Linwood v. Board of Education, City of Peoria, School District Number 150, Illinois, 463 F.2d 763 (7th Cir.1972), cert. denied, 409 U.S. 1027, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972). Because Linwood was expelled from high school for gross disobedience and misconduct for allegedly attacking and striking other students, his interest is more significant than that of plaintiffs. Nevertheless, the Seventh Circuit held that due process did not require that the decision be made in the form of a written opinion incorporating findings of fact upon which the decision is based. Id., at 770.
Order
Upon the basis of the entire record herein, it is ordered that:
(1) Plaintiffs’ motion for summary judgment is denied; and
(2) Defendants’ motion for summary judgment is granted, and this action is dismissed on its merits as to all claims by all plaintiffs against all defendants.
Entered this 25th day of February, 1982.
By The Court:
/s/ James E. Doyle District Judge
Lead Opinion
This is an appeal from the district court’s grant of summary judgment for the defendants in a case challenging the constitutionality of Wisconsin’s procedures for determining the residency of individuals for tuition purposes at state universities. This case has been the subject of a state action, Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976); and two federal appeals, Lister v. Lucey, 575 F.2d 1325 (7th Cir.), cert. den. 439 U.S. 865, 99 S.Ct. 190, 58 L.Ed.2d 175 (1978); Lister v. Hoover, 655 F.2d 123 (7th Cir.1981). Based on the remand on the last appeal, the only issue before the district court was whether the Committee of Appeals at the University of Wisconsin (Madison) was required by the due process clause of the fourteenth amendment to give written reasons for its denial of a student’s request to be classified as a state resident for tuition purposes. Upon cross motions for summary judgment, the district court answered the question in the negative and the plaintiffs appealed to this Court. We conclude that the district judge properly analyzed the issue raised and hereby affirm and adopt its opinion which is reprinted in the Appendix to this opinion.
