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Shim v. Rutgers-The State University of New Jersey

June 14, 2007

EZRINA SHIM, PLAINTIFF-RESPONDENT,
v.
RUTGERS-THE STATE UNIVERSITY OF NEW JERSEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal involves the proper interpretation of N.J.S.A. 18A:62-4 in determining whether a student is domiciled in New Jersey for purposes of in-state tuition.

Plaintiff, Ezrina Shim was born in Pennsylvania on November 5, 1984. Sometime later, Shim left the United States with her parents and settled in Korea. In 1999, Shim moved back to New Jersey to live with her aunt and uncle, the Parks, in Mount Laurel. Her parents remained in Korea. While living with the Parks, Shim attended four years of high school in Mount Laurel. She also obtained a New Jersey driver's license, acquired and registered an automobile in New Jersey, filed New Jersey personal income tax returns, and registered to vote. She has represented to others that she considers New Jersey her home and has no intention of returning to live in Korea.

In September 2003, Shim, then eighteen years old, enrolled as an undergraduate student at Rutgers. Prior to enrollment, the Admissions Office determined that Shim was not a resident of this State for tuition purposes because she was a dependent student whose parents were not domiciled here. Because Shim claimed residency based on her living arrangement with her aunt and uncle, Rutgers requested Shim to fill out a Residency Analysis Form (RAF). When Shim did not respond by July 2003, Rutgers issued a tuition bill for the fall of 2003 charging Shim the higher tuition for an out-of-state resident.

Shim submitted a response in November 2003, within the time specified by Rutgers in its Policy Statement. She formally requested a change in residency status and enclosed a partially-completed RAF. In the RAF, she indicated she had moved to New Jersey to live permanently in the United States. She did not claim to be financially independent, a dependent of a New Jersey resident, or a spouse of a New Jersey resident. However, she submitted an argument noting that under N.J.S.A. 18A:62-4, individuals who have lived in New Jersey for twelve months prior to enrollment are presumed domiciliaries. She argued that N.J.A.C. 9A:5-1.1(f), which provides that a student with parents domiciled outside the state are non-domiciliaries for tuition purposes, conflicted with the statutory provision and was an unauthorized exercise of agency power.

On December 4, 2003, Rutgers' Admissions office rejected Shim's request for in-state residency status. It explained that N.J.A.C. 9A:5-1.1 mandates that an undergraduate student is presumed to have the residency status of her parents, unless the student proves that she is "independent" as defined in the regulations. Further, Rutgers deemed the evidence submitted by Shim to show residence in New Jersey for the sole purpose of attending school, and explained that that fact plus presence in the state was insufficient to establish residence for the purpose of in-state tuition. In essence, Rutgers found that Shim's residence in the State for twelve months prior to enrollment was irrelevant because unrelated to the controlling provision of the case -- Shim's dependence on out-of-state parents.

Shim appealed through Rutgers' administrative process, and was denied at every stage. Shim filed a complaint in the Law Division, and the court granted Rutgers' motion for summary judgment. The Appellate Division reversed in a published opinion, holding that the decision was arbitrary and capricious because based on an erroneous application of the relevant regulatory standard. Shim v. Rutgers, The opinion of the court was delivered by: Justice Long

Argued January 29, 2007

In 2003, eighteen-year-old Ezrina Shim applied for admission to Rutgers University (Rutgers) for the fall term. At the time, she had lived in New Jersey for four years and therefore was presumed, under N.J.S.A. 18A:62-4, to be a domiciliary for the purpose of in-state tuition. Under Rutgers' reading of the applicable administrative regulation, N.J.A.C. 9A:5-1.1(f), Shim was subject to a counter-presumption of non- domiciliary status solely because of her financial dependence on her out-of-state parents. Rutgers only considered evidence bearing on that financial dependence in deciding Shim's case. Because Shim could not establish that she was financially independent of her parents, her application for in-state tuition was denied. Shim appealed and the Appellate Division reversed and remanded the case to Rutgers for reconsideration of all of the evidence to determine whether the presumption of non-domicile had been overcome and whether she, in fact, established that she was domiciled here. We now affirm, although on different grounds.

We hold that, pursuant to the legislative scheme of N.J.S.A. 18A:62-4, a student who has lived in New Jersey for twelve months prior to enrollment is presumed to be a domiciliary for tuition purposes. If that student is, in fact, dependent on out-of-state parents, that dependence creates a genuine issue regarding domicile and the presumption in her favor is neutralized. However, that does not give rise to the contrary presumption that she is a non-domiciliary. Rather, she is neither presumed a domiciliary nor presumed a nondomiciliary. Rutgers must then fully, fairly, and dispassionately consider all submitted evidence, including but not limited to evidence of the student's dependence on out-of-state parents. If a preponderance of the evidence indicates that the student's domicile is in New Jersey then it must classify her as a domiciliary for in-state tuition purposes.

I.

Ezrina Shim was born in Montgomery County, Pennsylvania on November 5, 1984. Sometime later, Shim left the United States with her parents and settled in Korea. In August 1999, she moved back to the United States to live with her aunt and uncle, the Parks, in Mount Laurel, New Jersey. Her parents remained in Korea.

While living with Mr. and Mrs. Park, Shim attended four years of high school in Mount Laurel. She also obtained a New Jersey driver's license; acquired and registered an automobile in New Jersey; opened a bank account in this State; worked several jobs here; filed New Jersey personal income tax returns; and registered to vote in Burlington County. In addition, Shim forged several meaningful social relationships in and around the State.

Since 1999, Shim has resided continuously in Mount Laurel with her aunt and uncle, visiting her parents in Korea only twice: for six weeks in the summer of 2000 and for three weeks in the summer of 2002. She has represented to others that she considers New Jersey her home and has no intention of returning to live in Korea. She does not speak Korean fluently, and has no meaningful social life or close friends in Korea.

In September 2003, Shim, then eighteen years old, enrolled as an undergraduate student at Rutgers. Prior to enrollment, the Admissions Office determined that Shim was not a resident of this State for tuition purposes because she was a dependent student whose parents were not domiciled here. Shim, however, claimed residency based on her living arrangement with her aunt and uncle.

As a result, Rutgers contacted Shim by letter in March 2003 to determine whether she had a claim for in-state tuition. The letter asked whether Mr. and Mrs. Park were Shim's legal guardians and requested that Shim complete a Residency Analysis Form (RAF). When Shim did not respond to that initial communication Rutgers sent her another letter, dated June 17, 2003, requesting the same information. Having received no immediate response, on July 11, 2003, Rutgers issued Shim a tuition bill for the fall of 2003, charging her the higher tuition rate for an out-of-state resident.

On July 30, 2003, Dennis Lim, Shim's youth pastor at Emmanuel Church in Philadelphia, sent Rutgers a letter attesting that he had known Shim for three years and that during that time she had resided with her aunt and uncle in Mount Laurel, New Jersey. Lim also noted that, to his knowledge, "Ezrina has no interest[] in returning to Korea after she graduates from college" and "her life is here in the United States, not in Korea."

Upon receipt of Lim's letter, Rutgers again asked whether Mr. and Mrs. Park were Shim's legal guardians and requested that Shim complete the RAF. Rutgers also indicated that if Mr. and Mrs. Park were Shim's legal guardians, they should submit documentation supporting their claim to be New Jersey domiciliaries.

Shim responded on November 8, 2003, after she had enrolled but within the timeframe specified by Rutgers in its Policy Statement on Student Residency for Tuition Purposes. In her response, Shim formally requested a change of residency status and enclosed a partially-completed RAF.

On her RAF, Shim indicated that she had moved to New Jersey "to live permanently in the United States." She also claimed that she hoped to finance her college expenses through financial aid.*fn1 Shim did not claim to be financially independent, a dependent of a New Jersey resident parent or legal guardian, or a spouse of a New Jersey resident. Consequently, she did not complete Parts II and III of the RAF, which, per the form's instructions, are to be filled out by the financially independent student, his/her spouse, or the New Jersey resident parent or legal guardian of a dependent student. In support of her claim, however, Shim submitted an "Enclosures List" with fourteen documents,*fn2 a "Description of Facts" detailing her relationship to New Jersey, and an "Argument" which she later supplemented with an addendum.

Shim set out the basis for her request for in-state tuition in her "Argument." There, she noted that under N.J.S.A. 18A:62-4, all students who are domiciled in New Jersey are entitled to in-state tuition rates, and individuals who have lived in the state for twelve months prior to enrollment in a public university are presumed domiciliaries. As Shim had lived in the state for over four years before her enrollment at Rutgers, she argued that she should have been presumed eligible for, and received, in-state tuition rates.

In arguing, Shim recognized that N.J.A.C. 9A:5-1.1(f) establishes a counter-presumption that dependent students with parents domiciled outside of the state are non-domiciliaries for tuition purposes. According to Shim, that regulatory presumption conflicts with the above-mentioned legislative presumption and therefore should be set aside. Alternatively, Shim argued that even if the two presumptions did not directly conflict, the administrative regulation should be declared void as an unauthorized exercise of agency power.

Finally, Shim claimed that she had rebutted the regulatory presumption of non-domicile and proved her domicile through the documentary evidence she provided with her RAF. As a legal adult, Shim contended that she possessed the capacity to choose her own domicile and had submitted evidence sufficient to show that (1) she is physically present in New Jersey and (2) intends to remain here. Accordingly, Shim maintained that Rutgers should have acknowledged her as a domiciliary and granted her in-state tuition rates.

On December 4, 2003, Rutgers' Admissions Office rejected Shim's request for in-state residency status.*fn3 In its letter, Rutgers explained that N.J.A.C. 9A:5-1.1 and 9A:9-2.6 mandate that an undergraduate student is presumed to have the residency status of her parents, unless the student proves that she is "independent" as defined in the Policy Statement and the state regulations. Because Shim never claimed that she was "independent," and provided no evidence to that effect, Rutgers continued to presume that she was a non-resident of New Jersey for tuition purposes.

Further, Rutgers noted that the evidence Shim provided was "of residence in New Jersey for the sole purpose of attending school," and that fact plus "a presence in the state [was], in and of itself, insufficient to establish residence for the purpose of in-state tuition." In essence, Rutgers found that Shim's residence in the State for twelve months prior to enrollment was irrelevant to its domicile determination because it was unrelated to the "controlling provision in [the] case," namely that Shim is a dependent student on out-of-state parents and thus presumed to be a non-domiciliary for tuition purposes.

Shim timely appealed that decision through Rutgers' administrative process. Her appeal was denied at every stage for the same reasons that Rutgers had previously stated. In addition, Rutgers added that a dependent student can overcome the presumption of shared domicile "if the student has special and unusual family circumstances that have resulted in a condition of financial independence." According to Rutgers, Shim had not shown she had established her own domicile in New Jersey because "a student who remains financially dependent upon his or her parents has not truly severed the bonds which connect that student to the parents' home."

Having exhausted her administrative appeals, Shim, represented by counsel, filed a complaint in lieu of prerogative writs in the Superior Court, Law Division,*fn4 seeking a declaratory judgment that she was an in-state resident for tuition purposes. Shim also sought to be reimbursed for tuition overcharges for the 2003-2004 academic year. Shim and Rutgers filed cross-motions for summary judgment. After oral argument, the trial judge granted Rutgers' motion.

Shim appealed and, in a split decision, the Appellate Division held that Rutgers' denial of Shim's application for in-state residency status was arbitrary and capricious because it was based upon an erroneous application of the relevant regulatory standard. Shim v. Rutgers, 358 N.J. Super. 200, 203 (App. Div. 2006). The panel remanded the case to Rutgers to consider the totality of the evidence in determining whether Shim had overcome the regulatory presumption of non-domicile and established entitlement to in-state tuition. Because there was a dissent in the Appellate Division, Rutgers now appeals to this Court as of right. R. 2:2-1(a)(2).

II.

Rutgers argues that its decision was based upon substantial evidence in the record and was neither arbitrary, unreasonable, nor capricious; that the regulations that establish a presumption of non-domicile are fully consonant with the statute; and that Shim was correctly classified as a dependent of her parents in Korea, thus rendering her legally ineligible for in-state tuition.

Shim reiterates her contentions that the regulatory presumption of non-domicile is ultra vires; that financial dependence cannot be dispositive of domicile; and that she has satisfied the standards necessary to be afforded an in-state tuition rate.

III.

Our role in reviewing an administrative agency's final decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). We will not reverse an agency's decision 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. Ibid.

Generally, courts afford substantial deference to an agency's interpretation of a statute that it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). An appellate court, however, is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." In re Taylor, supra, 158 N.J. at 658 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). That is the standard of review against which this dispute must be assessed.

IV.

For over a century, New Jersey has afforded residents more favorable tuition rates at state institutions than their non-resident counterparts. See, e.g., L. 1903 (2d. Sp. Sess.), c.1 § 190; L. 1932, c. 217, § 1; N.J.S.A. 18A:64-13. Prior to 1979, the regulatory standard that governed in-state tuition eligibility was absolute -- only twelve months residency in New Jersey prior to enrollment would suffice. See, e.g., N.J.A.C. 9:5-1.1 (1973) (amended by 12 N.J.R. 661(a) ...


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