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Lister v. Hoover

decided: July 31, 1981.

THOMAS E. LISTER, WILLIAM N. COONEY, AND JAMES S. THIEL, PLAINTIFFS-APPELLANTS,
v.
THOMAS H. HOOVER, INDIVIDUALLY AND AS REGISTRAR; NELLIE A. FINNANE, INDIVIDUALLY AND AS RESIDENCY EXAMINER AND LON W. WEBER AND DAVID J. HANSON, EACH INDIVIDUALLY AND AS A MEMBER OF THE COMMITTEE ON APPEALS FROM NON-RESIDENT TUITION OF THE UNIVERSITY OF WISCONSIN-MADISON CAMPUS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Wisconsin. No. 71-C-401 -- James E. Doyle, Judge.

Before Cummings, Chief Judge,*fn* Cudahy, Circuit Judge, and Marovitz, Senior District Judge.*fn**

Author: Per Curiam

Plaintiffs are three former students at the University of Wisconsin at Madison, who were denied resident status and the accompanying reduced tuition for a portion of the period of their enrollment as students. Their claim, under 42 U.S.C. § 1983 (1976), is that the defendant officials of the University of Wisconsin violated their rights under the equal protection and due process clauses of the Fourteenth Amendment by denying them resident status. At present, plaintiffs' claims have narrowed and are now solely against the officials in their individual capacities for money damages. The district court found in favor of the defendants on all claims with the exception of one claim that was dismissed by stipulation and this appeal followed.*fn1

I. The Factual Background

Three plaintiffs*fn2 are involved in this appeal and their circumstances differ somewhat in non-material ways. Rather than unduly lengthen this opinion by an unnecessary recitation of the facts, we shall describe a composite of their circumstances to provide a backdrop for our legal analysis.

Plaintiffs were emancipated adults when they enrolled at the University of Wisconsin Law School within a few weeks of moving to Wisconsin. Each was classified as a non-resident for tuition purposes at that time. None of the plaintiffs challenge their initial classification as non-residents.

Each of the plaintiffs waited over a year before applying for reclassification in 1971 as a "bona fide resident" for tuition purposes. See Wis.Stat. § 36.16 (1971). Under that statute as enacted at the time in question,*fn3 a "student from another state who is in this state principally to obtain an education (would) not be considered to have established a residence in Wisconsin by virtue of attendance at educational institutions." Wis.Stat. § 36.16(3) (1971). As construed by the district court, that statute provides for a rebuttable presumption of non-residency for students like the plaintiffs who have moved to Wisconsin to enroll in educational institutions.*fn4 The same subsection of the statute provides that "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." Wis.Stat. § 36.16(3) (1971). These four criteria are neither necessary nor themselves sufficient to establish "bona fide residence" within the meaning of the statute but are considered important guidelines on the ultimate question of a student's intent to be domiciled in Wisconsin for purposes other than merely getting an education.

When plaintiffs applied for reclassification, they met all or at least a portion of the four statutory criteria. Additionally, each plaintiff presented evidence of other links to Wisconsin such as membership in community organizations, investments in Wisconsin ventures and long-term housing arrangements. All three plaintiffs were initially denied reclassification in 1971. After varying periods of time, however, plaintiffs Thiel and Lister were reclassified as residents and were entitled to resident tuition. Their claims for damages are derived from that interval between their ultimate reclassification as bona fide residents and their initial application for resident status. Plaintiff Cooney was never reclassified and his claim is based upon the denials of his repeated applications during his enrollment.

II. Due Process

Plaintiffs' due process argument has three prongs. First, plaintiffs allege that the hearing on their applications for reclassification was so "arbitrary and meaningless" as to constitute no hearing at all. Second, plaintiffs allege that the defendants violated plaintiffs' due process rights by failing to inform them of the standards guiding the defendants in evaluating the residence question. Finally, plaintiffs challenge the failure of the defendants to state the reasons why they denied plaintiffs' applications for reclassification.

As to the hearing, mere superficial contradictions between announced criteria and the pattern of decisions in a few isolated cases*fn5 is insufficient to state a due process claim. This is particularly true where the issue before the hearing is as nebulous as a student's intent to be a resident of a state. All three plaintiffs filed written submissions, made oral presentations and asked questions at the hearing on their applications for resident status.*fn6 The presentation of this individualized evidence, including an opportunity for defendants to observe the demeanor of the plaintiffs, leaves us reluctant to conclude that the pattern of decisionmaking was the result of administrative caprice. We think it more likely the product of a reasoned analysis of a question incapable of purely objective definition. Compare 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).

Plaintiffs also challenge the failure of the defendants to disclose the standards used to determine residency for tuition purposes. Plaintiffs recognize, however, that the ultimate issue that the defendants were considering was "whether plaintiffs were residents because of their intention to remain in Wisconsin," Appellants' Brief at 24, or "whether they were primarily in Wisconsin for the purpose of attending the University." Appellants' Brief at 26. The Wisconsin statute itself provides some guidance by explicitly requiring consideration of Wisconsin tax returns, voter eligibility, motor vehicle registration and employment. Wis.Stat. § 36.16(3) (1971). Plaintiffs were given no guidance beyond the provisions of the statute. Defendant Hoover maintained that no guidelines were issued because publication would only enable students without the requisite intent to meet any guideline, rendering such a guideline less effective. Hoover Deposition, December 29, 1971, at 34.

We agree with the district court, however, that no additional guidance was necessary as a matter of constitutional law. The issue is one of intent and no catalogue of objective criteria could, in most circumstances, be conclusive or determinative. Hooban, 503 F.2d at 652. Plaintiffs were not hindered in their presentation of relevant evidence. Indeed, the extensive presentation of evidence of community involvement and permanent ties to Wisconsin appears to have been decisive in the two cases where resident status was eventually granted. There is no allegation that improper or incorrect evidence was considered. Compare Gonzales v. United States, 348 U.S. 407, 413, 75 S. Ct. 409, 412, 99 L. Ed. 467 (1955). When discussing the Connecticut approach to this question, the Supreme Court quoted approvingly from an unreported opinion of the Connecticut Attorney General:

In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, ...


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