Opinion
DOCKET NO. A-2245-13T2
06-14-2016
IN THE MATTER OF DENIAL BY HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY OF PETITION FOR RULEMAKING REGARDING N.J.A.C. 9A:9-2.2 RESIDENCY REQUIREMENTS FOR STUDENT FINANCIAL AID
Ronald K. Chen argued the cause for appellants (Rutgers Constitutional Rights Clinic, and American Civil Liberties Union of New Jersey Foundation, attorneys; Edward Barocas, Jeanne LoCicero, Alexander Shalom, of counsel and on the brief; Mr. Chen, on the brief). Geoffrey N. Stark, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stark, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from the Higher Education Student Assistance Authority's Resolution 22:13 Denying a Petition for Rule-Making. Ronald K. Chen argued the cause for appellants (Rutgers Constitutional Rights Clinic, and American Civil Liberties Union of New Jersey Foundation, attorneys; Edward Barocas, Jeanne LoCicero, Alexander Shalom, of counsel and on the brief; Mr. Chen, on the brief). Geoffrey N. Stark, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stark, on the brief). PER CURIAM
Petitioners, Rutgers Constitutional Rights Clinic, American Civil Liberties Union of New Jersey, Latin American Legal Defense and Education Fund, and Latino Justice PRLDEF, appeal from a December 2, 2013 Notice of Action by the Higher Education Student Assistance Authority (HESAA or the agency) denying their petition for rulemaking submitted pursuant to N.J.S.A. 52:14B-4(f). The petition sought amendments to N.J.A.C. 9A:9-2.2, a regulation that addresses the one-year New Jersey residency requirement for receiving State financial aid under N.J.S.A. 18A:71B-2(b). We affirm the agency's December 2, 2013 determination.
N.J.S.A. 18A:71B-2(b) states: "A person shall not be awarded financial aid under this chapter unless the person has been a resident of this State for a period of not less than 12 months immediately prior to receiving the financial aid."
I
To put this appeal in perspective, the petition was part of a continuing effort to assist students who are United States citizens, but whose parents are undocumented immigrants, to obtain State financial aid to attend institutions of higher education. The background was addressed at length in our previous opinion in A.Z. v. Higher Education Assistance Authority, 427 N.J. Super. 389 (App. Div. 2012). The Higher Education Assistance Act was intended to guarantee financial aid, in the form of a Tuition Aid Grant (TAG), to otherwise-eligible students who are bona fide New Jersey residents. Id. at 395. The pertinent regulation, N.J.A.C. 9A:9-2.2, is aimed at disqualifying temporary residents, such as out-of-state students who move here solely for the purpose of attending college, from obtaining New Jersey financial aid. To prevent those students from circumventing the purpose of N.J.S.A. 18A:71B-2, which is to reserve state aid for New Jersey residents, the agency's original regulations for decades established a rebuttable presumption that a dependent student's legal residence was the same as that of his or her parents' residence. A.Z., supra, 427 N.J. Super. at 400. However, in 2005 the agency amended its regulations, deeming residency to mean "domicile" and establishing an irrebuttable presumption that a dependent student's domicile was the same as that of his or her parents. A.Z., supra, 427 N.J. Super. at 398-401.
In the remainder of this opinion, we use the terms "residency" and "domicile" interchangeably.
In A.Z., we addressed an as-applied challenge to the 2005 amended regulation, filed by a student who was a United States citizen and a New Jersey resident, but whose mother was an undocumented immigrant and therefore not a legal New Jersey resident. We concluded that "the Authority's decision [denying aid to A.Z.] is based upon a misapplication of law, and a regulation that alters the terms of the governing statute." Id. at 392. Reasoning that a student's residency may be different from that of his or her parents, we held that the amended regulation creating an irrebuttable presumption of a student's non-residency, based on the parent's non-residency, was contrary to the purpose of the financial aid statute and was invalid.
To the extent the agency's regulation deems a student a non-domiciliary solely and conclusively based on the parent's domicile — notwithstanding that the particular facts may demonstrate that New Jersey is actually the student's true, fixed, permanent home — the agency violates the terms of the statute. The agency also undermines the fundamental legislative purpose of the TAG program and the eligibility requirements. The purpose of the residency and domicile requirement is to prevent temporary residents from utilizing precious tuition aid funds.
[Id. at 399.]
Because it was clear that A.Z. was a New Jersey resident, our opinion declined to "review HESAA's conclusion that [A.Z.'s mother] lacks the capacity to become a legal resident or domiciliary of New Jersey." Id. at 402.
II
Before addressing petitioners' challenge to the rejection of their rulemaking proposal, it is appropriate to define the scope of what is properly before us on this appeal. Petitioners' rulemaking proposal sought a number of changes to the criteria the agency used to determine whether a student could satisfy the residency requirement. The agency denied the petition in December 2013, but it subsequently amended its regulations in an attempt to comply with A.Z.
Specifically, in 2014, the agency amended its regulations to replace the irrebuttable presumption of non-residency with a rebuttable presumption. That was consistent with our observation in A.Z. that the Legislature had implicitly approved the agency's original, longstanding rebuttable presumption. Id. at 401-02. Prior to the 2014 amendments, the regulations set forth a short list of documents that a student was required to submit to the agency if the agency questioned the student's New Jersey residency. See N.J.A.C. 9A:9-2.2(b) (2011) (amended 2015). Those included the student's and/or parent's New Jersey driver license; their New Jersey State income tax-resident returns; or "[s]uch documentation as may be deemed necessary by the Authority upon specific case review." N.J.A.C. 9A:9-2.2(b) (2011) (amended 2015).
The 2014 amendments to N.J.A.C. 9A:9-2.2(b) modified "the documentation necessary to demonstrate residency." Instead of setting forth an exclusive and limited list of acceptable documents, the regulation now states that the list "includes, but is not limited to" certain specified documents. N.J.A.C. 9A:9-2.2(b). At oral argument, HESAA's attorney confirmed that the list is non-exclusive, and the agency will consider additional types of documentation as evidence of a student's New Jersey residency.
The 2014 amendments also incorporated one of petitioner's proposals and adopted a modified version of another. The agency amended the regulations to include, as acceptable proof of New Jersey residency, a student's "New Jersey non-driver identification card" and "[p]roof of graduation from a New Jersey high school." N.J.A.C. 9A:9-2.2(b)(1), (b)(3). We conclude that petitioners' appeal is moot with respect to those proposals, because, as we understand the regulations, one or both of those documents will now be accepted as evidence of residency.
In addition to not deciding moot issues, we decline to address issues otherwise not properly presented by this appeal. As our Supreme Court has recently reminded us, it is not our role to issue advisory opinions. State v. J.M., Jr., ___ N.J. ___, ___ (2016) (slip op. at 21). Additionally, we should avoid deciding constitutional questions unless "imperative to the disposition of litigation." Randolph Town Ctr., L.P. v. Cty. of Morris, 186 N.J. 78, 80 (2006); A.Z., supra, 427 N.J. Super. at 394-95.
Petitioners have not filed an as-applied challenge to the agency's current amended regulations, and their notice of appeal was not amended to include those regulations. At oral argument their counsel acknowledged that they did not "directly" raise a constitutional challenge to the previous regulations. Consequently, this appeal does not properly present, and we do not address, a challenge to the manner in which the agency applies its current regulations to students whose parents are undocumented immigrants.
III
Focusing on the narrow issues properly presented by this appeal, our review of the agency's action is limited to the following two proposals in the petition: (1) amending N.J.A.C. 9A:9-2.2(a) to provide that proof of current enrollment in a New Jersey public or non-residential private high school shall create a rebuttable presumption that the student is a New Jersey resident; and (2) amending N.J.A.C. 9A:9-2.2(b) by adding to the list of acceptable documents proof of a student's or parent's New Jersey voter registration.
Our review of the agency's denial of a rulemaking petition is generally limited to determining whether the agency's inaction is "manifestly arbitrary or capricious." In re State Bd. of Educ.'s Denial of Petition to Adopt Regulations, 422 N.J. Super. 521, 539 (App. Div. 2011).
Courts can intervene only in those rare circumstances in which it is clear that the
agency action is inconsistent with its mandate. Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role is restricted to three inquiries: (1) whether the agency's action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors.
[In re Petition for Rulemaking, 117 N.J. 311, 325 (1989).]
Applying those standards, we begin by considering the dispute over proof of voter registration. The agency rejected petitioners' proposal for two reasons. First, New Jersey voter registration is not proof of one-year residency, because an individual can register to vote in New Jersey thirty days after moving to this State. See N.J.S.A. 19:31-5. Second, the agency reasoned that:
It is common practice for New Jersey colleges and universities to encourage students to utilize the more lenient residency requirements so they can participate in the electoral process. As such, many out-of-state students register to vote in New Jersey without intending to change their residency or meeting the statutory residency requirements for receiving State aid.Consequently, the agency was unwilling to accept proof of voter registration as conclusive proof of New Jersey residency. However, as previously noted, at oral argument, the agency's counsel represented to us that the list of documents set forth in N.J.A.C. 9A:9-2.2(b) was non-exclusive, and the agency would consider a student's New Jersey voter registration as evidence, but not conclusive proof, of residency.
Given our very limited scope of review, we cannot say that the agency's decision on this issue was irrational, unreasonable, or otherwise arbitrary and capricious. See In re Petition for Rulemaking, supra, 117 N.J. at 325. The agency sought a balance between not excluding students who are eligible for state aid, and not facilitating evasion of the residency requirement. We find no basis to disturb the agency's policy choice.
Next, we consider the agency's rejection of the proposed rebuttable presumption that a student enrolled in a New Jersey high school is a New Jersey resident. Citing N.J.S.A. 18A:38-1(b), the agency reasoned that "[s]tudents are not required to be legal New Jersey residents to attend school in New Jersey." The agency noted that in 2012-13, "173 out-of-state students attended high school in New Jersey." The agency also noted the practical problem that its computer system was not capable of determining the location of a student's high school, for purposes of making an initial eligibility determination.
Based on the record before us, we infer that the agency bases its initial eligibility determination on information contained in a student's standard financial aid form, the Free Application for Federal Student Aid (FAFSA). Apparently, the agency's computer system cannot cross-check information contained on the FAFSA. --------
Given our deferential standard of review, we will not second-guess the agency's decision. Again, we consider that the list of acceptable evidence in N.J.S.A. 9A:9-2.2(b) is non-exclusive. So long as the agency is willing to consider attendance at a New Jersey high school as evidence of a student's residency, even if not as conclusive proof, we cannot say that the agency acted arbitrarily in rejecting petitioners' proposal that such documentation should create a rebuttable presumption of residency.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION