[00:00:01] Speaker 04:
May please the court.

[00:00:02] Speaker 04:
I will reserve five minutes for a bottle.

[00:00:06] Speaker 04:
This case presents a straightforward and clear violation of the United States Supreme Court's holding in Vlandis versus Klein.

[00:00:16] Speaker 04:
It's straightforward because the defendants put the constitutional violation down in writing.

[00:00:23] Speaker 04:
It's clear because the primary administrative official, Clayton Christensen, testified that he knew the rule before and after its amendment violated the law.

[00:00:39] Speaker 04:
This case challenges rule 940.1 of the Board of Regents of Montana, which applies, oddly, to professional students.

[00:00:50] Speaker 04:
The university defines professional students as those in

[00:00:54] Speaker 04:
the study of law, pharmacy, or physical therapy.

[00:00:59] Speaker 04:
Those students are treated differently than all other students that attend the university.

[00:01:04] Speaker 04:
If you are new to Montana, and new to Montana meaning you moved there with the intent to stay, which is all that's required for residency, and you choose to study one of those three subjects, when the suit was brought, 940.1 said,

[00:01:21] Speaker 04:
that these quote unquote professional students were not eligible for reclassification and shall maintain their out-of-state residency for the duration of their studies.

[00:01:32] Speaker 03:
So Vlandis said the universities couldn't have an irrebuttable presumption.

[00:01:37] Speaker 03:
Correct.

[00:01:38] Speaker 03:
Correct.

[00:01:39] Speaker 03:
OK.

[00:01:41] Speaker 03:
And if you look at the rule, the first one that we're dealing with, and probably even for the second one as well,

[00:01:51] Speaker 03:
Here, despite the clear language in the rule, there was consideration given to other factors.

[00:02:03] Speaker 03:
What do we do with that?

[00:02:04] Speaker 04:
There was no consideration given to other factors.

[00:02:09] Speaker 04:
And I'm going to explain.

[00:02:10] Speaker 04:
Hagen?

[00:02:11] Speaker 04:
Well, I mean, some of them there was clear consideration of other factors.

[00:02:17] Speaker 04:
Commissioner Christian's letter to every single student ended the same.

[00:02:24] Speaker 04:
And the best way to see this is in the two letters written to Mr. Bennett.

[00:02:32] Speaker 04:
all the letters ended, you are a professional student, you retain your out-of-state residency for the duration of your studies.

[00:02:40] Speaker 04:
That was the only reason given in writing to Mr. Bennett both times.

[00:02:45] Speaker 04:
The reason it was the only reason given to him is upon moving to Montana in August of 21,

[00:02:54] Speaker 04:
He did everything they asked of him, everything.

[00:02:57] Speaker 04:
There was nothing else he could have done.

[00:02:59] Speaker 04:
And both times, Commissioner Christian denied him.

[00:03:02] Speaker 04:
In written discovery, we asked during the eight-year statute of limitations, I think it was going back to 2015, who had been granted in-state status despite this irrebuttal presumption.

[00:03:18] Speaker 04:
And the written discovery response was nobody.

[00:03:21] Speaker 02:
So I'm looking at the denial letter.

[00:03:23] Speaker 02:
I mean, it ends in saying, importantly, even if I were to waive the requirements of the policy and allow you to seek reclassifications, you do not meet the policy requirements for residency.

[00:03:34] Speaker 02:
A 12 month continuous period of domicile in Montana with a documented and dated intent to become has not yet elapsed.

[00:03:40] Speaker 02:
So isn't that another reason not because of the policy?

[00:03:43] Speaker 04:
and this is to Bennett.

[00:03:45] Speaker 02:
Yes, I believe.

[00:03:47] Speaker 02:
Yep, no, sorry, Bethany Neiman.

[00:03:51] Speaker 04:
Sure, and I think Bethany Neiman's a good example because the court really weighed the evidence.

[00:03:58] Speaker 04:
I mean, that's the fundamental error here that we are appealing.

[00:04:02] Speaker 04:
The court abused its discretion because it weighed the evidence.

[00:04:05] Speaker 04:
Bethany Neiman is a resident of Montana today.

[00:04:07] Speaker 04:
She moved to Montana after selling her home

[00:04:11] Speaker 04:
brought her husband, he immediately got a job, and they live there today.

[00:04:15] Speaker 04:
She did everything that was required of her, including her husband obtained employment.

[00:04:22] Speaker 04:
Of course, it's important to note law students and pharmacy students can't obtain employment.

[00:04:27] Speaker 04:
It's one of the requirements of the program.

[00:04:30] Speaker 04:
She obtained her driver's license, she registered her vehicle, she registered to vote.

[00:04:35] Speaker 04:
All the students paid taxes for all the years they were in Montana.

[00:04:38] Speaker 02:
So may I ask, did you dispute that Commissioner Christian could waive the requirements of the policy?

[00:04:46] Speaker 04:
We disputed that he could because he never did.

[00:04:48] Speaker 02:
Well, that's not a dis... I mean, there's a difference between having the authority to do it and then exercising that authority.

[00:04:53] Speaker 02:
Do you dispute that he has that authority?

[00:04:56] Speaker 04:
We dispute that he has the authority.

[00:04:57] Speaker 02:
But what evidence do you have to show that he doesn't have that authority?

[00:05:01] Speaker 04:
The fact that it was never done and he testified, he applies the rule.

[00:05:05] Speaker 04:
as written.

[00:05:05] Speaker 04:
He said that he doesn't apply the rule.

[00:05:07] Speaker 04:
Well, he said he does a totality of the circumstances.

[00:05:11] Speaker 04:
But until the case was filed in the prior eight years, nobody had passed.

[00:05:16] Speaker 04:
And Bennett's a good example.

[00:05:17] Speaker 04:
He couldn't have come up with any other reason to exclude Bennett.

[00:05:20] Speaker 02:
I mean, in the letter itself, he says that he has the ability to waive the requirements of the BOR policy 941.1.

[00:05:28] Speaker 04:
But he couldn't identify ever having done that.

[00:05:30] Speaker 02:
Yeah.

[00:05:31] Speaker 02:
But that's a distinction, though.

[00:05:31] Speaker 02:
Don't you see?

[00:05:34] Speaker 02:
like one is a legal authority, one is whether or not he exercises that legal authority.

[00:05:38] Speaker 04:
It is our position, he, and this is another thing he testified to, he expected all of his subordinates, the registrars, throughout the university system to apply the rules written.

[00:05:52] Speaker 04:
He applied the rules written.

[00:05:54] Speaker 04:
A fair reading of both letters to Mr. Bennett are, you're a professional student, you cannot be reclassified.

[00:06:00] Speaker 04:
That's all it says, because they couldn't

[00:06:04] Speaker 04:
They could not identify another factor, even under the new rule.

[00:06:09] Speaker 04:
And here's how they tried to fix the problem when we filed the lawsuit.

[00:06:12] Speaker 04:
The new rule said that professional degree program students maintain their student status, maintain their non-resident status while in student status.

[00:06:25] Speaker 04:
You basically now have to, and this is the rule enforced today, you have to move to Montana and live there for 12 months without going to school.

[00:06:33] Speaker 04:
If during that 12 months you go to school at any point with your family, your kids, you buy a home, you get a job, you pay taxes, you still can never become a resident under this policy as long as you maintain student status.

[00:06:48] Speaker 04:
And the district court on the motion to dismiss said that the policy still bars professional degree program students from controverting the residency classification while in student status.

[00:07:03] Speaker 04:
the policy is unconstitutional on its face and is applied to them.

[00:07:08] Speaker 02:
I mean, the court clearly... The thing is, I agree with you if that was it, but the problem is that they are asserting an appellate right, that the commissioner is asserting a right to waive those requirements, and he testified that he doesn't apply the law irrebuttably.

[00:07:24] Speaker 02:
So that's what takes us out of Landis, in my view.

[00:07:27] Speaker 02:
And then you don't have clearly established law.

[00:07:30] Speaker 04:
Sure, but that also falls victim to exactly what the district court did.

[00:07:36] Speaker 04:
This is summary judgment.

[00:07:38] Speaker 04:
All of the students that, you know, Neiman and Vincenzo still live in Montana.

[00:07:46] Speaker 02:
But that's not the fact that's being disputed.

[00:07:51] Speaker 02:
The fact that's being disputed is whether or not the commissioner has the ability to waive the requirements.

[00:07:55] Speaker 04:
but that's a dispute of fact.

[00:07:57] Speaker 02:
Well, that's my question.

[00:07:58] Speaker 02:
Is it a dispute of fact?

[00:07:59] Speaker 02:
It's a legal authority, and you haven't put forward any evidence or any law or saying that the commissioner can't do it.

[00:08:07] Speaker 02:
The only thing is you have an inference that he didn't exercise it, which is something, but it's not dispositive in any way.

[00:08:14] Speaker 04:
On summary judgment, we would argue it's dispositive.

[00:08:17] Speaker 04:
And his testimony that he could make an exception

[00:08:20] Speaker 04:
is rebutted by the evidence where you've got students that have done everything the rule requires.

[00:08:27] Speaker 04:
That includes Neiman, Bennett, Bolina, Caldwell, Casey, Hagan, Vincenzo, and Ward.

[00:08:34] Speaker 04:
I mean, they all did what the rule requires.

[00:08:37] Speaker 04:
And yet, the only thing they were told is you're a professional student.

[00:08:41] Speaker 04:
And the rule says what it says.

[00:08:42] Speaker 04:
Hagan's a good example because there's a lot of people like him.

[00:08:45] Speaker 04:
He was a law student.

[00:08:46] Speaker 04:
He's now clerking for a federal district court.

[00:08:49] Speaker 04:
He read the rule.

[00:08:50] Speaker 04:
He understood that not eligible means not eligible, so he didn't apply.

[00:08:55] Speaker 04:
He doesn't have to apply to be a victim.

[00:08:57] Speaker 04:
He understood that the rule says what it says.

[00:09:02] Speaker 04:
And there is no discretion for the commissioner to redress that.

[00:09:06] Speaker 03:
This question just a little bit further.

[00:09:08] Speaker 03:
Judge Woonty's question a little bit further, and that's this.

[00:09:11] Speaker 03:
OK, let's assume.

[00:09:13] Speaker 03:
So we're in the world of public officials.

[00:09:17] Speaker 03:
They have the right to claim qualified immunity.

[00:09:20] Speaker 03:
Qualified immunity consists of two parts.

[00:09:23] Speaker 03:
On the facts that allege, if you take them as true, basically if you take them as true, there's a reasonable likelihood that a jury could find in favor of the plaintiffs, okay?

[00:09:36] Speaker 03:
All right, but the officials can claim qualified immunity.

[00:09:41] Speaker 03:
And the qualified immunity, the key test there is, was the law clearly established at the time of the action?

[00:09:48] Speaker 03:
Okay, so here, we just don't, we know with respect to some of these individuals, despite what you say and the way you read the letter, the way I read the letter is with respect to some, like Neiman, she was able to present some evidence or whatever, give her position on why she was entitled to be classified as an in-state student.

[00:10:12] Speaker 03:
And the rule does apply that there's some right of appeal.

[00:10:17] Speaker 03:
And so on all these facts, what Landis was pretty clear, it dealt with a clear irrebuttable presumption.

[00:10:28] Speaker 03:
We have a little bit more here.

[00:10:30] Speaker 03:
So what law says, what's case or what authority do you have that under these circumstances,

[00:10:41] Speaker 03:
these officials should have known what they did violated Ms.

[00:10:46] Speaker 03:
Neiman's constitutional rights under these circumstances.

[00:10:49] Speaker 04:
Well, we have more than that.

[00:10:50] Speaker 04:
We have Commissioner Christian's admission.

[00:10:53] Speaker 04:
I mean, that's what takes this beyond the prior cases.

[00:10:56] Speaker 04:
This has been a 30-year battle.

[00:10:59] Speaker 03:
Well, I realize you have his admission, but was there any law that said that any case that if he had read, he'd know that even considering

[00:11:12] Speaker 03:
These facts, would there be some case that would say, you know, you can't, you, what you're doing here is you're violating this guy's rights.

[00:11:18] Speaker 04:
You got to... And I asked him in his deposition, he knew about Volandas, he knew that an irrebuttal presumption violated the law.

[00:11:26] Speaker 04:
He understood this.

[00:11:27] Speaker 04:
He understood that the rule is written violated the law.

[00:11:30] Speaker 04:
And the cosmetic amendment,

[00:11:32] Speaker 04:
The district court found that that still violated the law, because it still excluded anybody that took higher education in the first 12 months of moving to Montana to be permanently classified as non-resident.

[00:11:44] Speaker 03:
I guess your argument is that Vlandis, which prohibits the use of near-rebatable presumption,

[00:11:54] Speaker 03:
clearly applies in this circumstance.

[00:11:56] Speaker 03:
Absolutely.

[00:11:57] Speaker 03:
This is 100% on point.

[00:11:58] Speaker 03:
And to you, it makes no difference that the officials considered other factors.

[00:12:05] Speaker 03:
Because I wonder, I figure which letter it is.

[00:12:07] Speaker 03:
I mean, there are like five letters or whatever.

[00:12:10] Speaker 03:
Some of them clearly say, you raise the question of whether or not this is lawful.

[00:12:13] Speaker 03:
And so therefore, we're going to go on, and I'm going to consider all these other things.

[00:12:17] Speaker 04:
But they didn't do that for Hagen.

[00:12:19] Speaker 04:
They didn't do that for Bennett.

[00:12:20] Speaker 04:
They didn't do it for all of the students.

[00:12:22] Speaker 04:
And to the extent they pretended to, every letter does end with, you're a professional student and you're barred from reclassification.

[00:12:30] Speaker 03:
There was a question about Bolano?

[00:12:32] Speaker 03:
Bolino.

[00:12:33] Speaker 03:
Bolino.

[00:12:35] Speaker 03:
Bolino never applied for reclassification.

[00:12:43] Speaker 03:
But as I read the answer to the complaint, which alleges that she did, or he did, I know, male or female.

[00:12:49] Speaker 03:
That this the the universe the defendants answered in the in the answer.

[00:12:56] Speaker 03:
They said yes, we admit that she applied or he applied Jora Bellina.

[00:13:00] Speaker 03:
Yes, is that correct?

[00:13:02] Speaker 04:
Applied for a classification.

[00:13:03] Speaker 04:
Yes, Higgins the only one that didn't because he knew it was futile And the others that did found out it was futile because their letters told them you're a professional student You can't be reclassified

[00:13:14] Speaker 04:
That is how this rule was applied by an administrative official after testifying he knew it was unlawful.

[00:13:21] Speaker 04:
The lip service given to, well, we could have made an exception.

[00:13:26] Speaker 04:
The evidence on summary judgment shows that they never did.

[00:13:29] Speaker 04:
They only did during litigation on a single occasion.

[00:13:32] Speaker 03:
You make a big point of that, but I'm not sure that answers all my questions.

[00:13:37] Speaker 03:
But let me ask you this.

[00:13:39] Speaker 03:
Let's assume that we were to agree with you that they don't get qualified immunity.

[00:13:44] Speaker 03:
Okay, do all the cases go back?

[00:13:47] Speaker 03:
All the cases go back.

[00:13:48] Speaker 04:
And what happens?

[00:13:50] Speaker 04:
The court should reconsider this without choosing which facts to believe and which facts not to believe.

[00:13:57] Speaker 04:
That's the fundamental.

[00:13:58] Speaker 03:
Wouldn't there have to be a trial?

[00:14:01] Speaker 04:
No, the court can declare, after doing it again, that what it said the first time, that this is unconstitutional on its face and has applied to these defendants.

[00:14:14] Speaker 04:
And then as a practical matter, if that's what the court's asking, the administrative

[00:14:21] Speaker 04:
process of the class action would probably involve the appointment of a mediator.

[00:14:25] Speaker 04:
We all know most people that are truly non-resident wouldn't... But there's no right to a jury trial here?

[00:14:32] Speaker 04:
There is a right to a jury trial, but the necessity of that in a claims administration process would be limited.

[00:14:38] Speaker 04:
This only asks the university to do what they need to do the first time.

[00:14:41] Speaker 03:
Who decides whether or not any of the defendants suffered real damages?

[00:14:45] Speaker 04:
Everybody suffered damages.

[00:14:47] Speaker 03:
In other words,

[00:14:48] Speaker 03:
Would a trial, would they be able, would the university be able to show that despite this rule, they never would have qualified for in-residence status?

[00:14:58] Speaker 03:
Anyway, because they were getting 50% of their income from an outside source.

[00:15:03] Speaker 04:
That is the university's burden if they contest some of these students, but a lot of them are going to be living in Montana today.

[00:15:11] Speaker 03:
Okay, fine.

[00:15:16] Speaker 03:
Either I'm not connecting or,

[00:15:18] Speaker 03:
Yeah, maybe I'm not understanding the question.

[00:15:20] Speaker 03:
That's OK.

[00:15:22] Speaker 03:
I don't want to beat the coin.

[00:15:24] Speaker 00:
I realize you're over time.

[00:15:26] Speaker 00:
May I ask a question?

[00:15:27] Speaker 00:
Thank you.

[00:15:28] Speaker 00:
So I'd like to drill down a little bit more on the nature of the alleged violation of Vlandis in this case.

[00:15:36] Speaker 00:
And in Vlandis, the court struck down the Connecticut law that established a permanent, irrebuttable presumption as to the student's status, whether in state or out of state.

[00:15:49] Speaker 00:
And in that case, the Supreme Court held that the law violated due process, quote, because it provides no opportunity for students who applied from out of state to demonstrate that they have become bona fide Connecticut residents, end quote.

[00:16:07] Speaker 00:
And that's at page 443.

[00:16:09] Speaker 00:
So in this case, subsequent to Vlandis, the Montana Attorney General issued an opinion letter opining on whether the Vlandis decision raised concerns about the constitutionality of the Montana scheme.

[00:16:26] Speaker 00:
And in that Attorney General opinion,

[00:16:29] Speaker 00:
It held that school's policy did not violate Vlandis because, quote, the fact that a full-time student at any unit of the Montana University system may change

[00:16:45] Speaker 00:
His classification, from non-resident to resident for fee purposes, removes the Montana statutes from the unconstitutional taint found in the Connecticut law in Vlandis.

[00:16:59] Speaker 00:
And the attorney general continues later in that opinion, it is thus apparent that unlike the students who challenged residency laws in Vlandis and Covel, students attending any unit of the Montana University system

[00:17:14] Speaker 00:
may, even while full-time students, present evidence sufficient to warrant a change in their classification from non-resident student to resident student for tuition and fee purposes.

[00:17:30] Speaker 00:
So, contrary to what the attorney general said in that 1973 opinion letter, at least as applied to the professional students, that residency policy did not allow them to change their classification under any circumstance.

[00:17:50] Speaker 00:
So, I realize that's a lengthy lead-up, but subsection H provides any out-of-state student admitted to the professional degree program

[00:17:58] Speaker 00:
is not eligible for reclassification as an in-state resident and shall remain classified as an out-of-state student for the duration.

[00:18:10] Speaker 00:
And then it goes on to say, a student classified as out-of-state who maintains the initial classification was in error, may only seek reclassification pursuant to the procedures of this policy,

[00:18:23] Speaker 00:
prior to starting the initial term of enrollment.

[00:18:29] Speaker 00:
So the focus on my question and my struggle to really understand the issue in this case, frankly, is that

[00:18:38] Speaker 00:
is not whether the residency policy in general look to a variety of other considerations to determine whether the student qualified for in-state costs.

[00:18:51] Speaker 00:
The focus of my question is whether subsection H

[00:18:55] Speaker 00:
per se violates Vlandis because professional students were expressly prohibited from being able to petition for reclassification based on that change of circumstance, which I think, in my opinion, then provides no opportunity for students to demonstrate they have become bona fide state residents.

[00:19:19] Speaker 00:
contrary to Vlandis, which is to say they're stuck in time.

[00:19:24] Speaker 00:
Could you please just is that what you're is that different from what you're arguing or is that a fair reading of what your position is as to the problem with the policy as to the professional students?

[00:19:37] Speaker 04:
You're exactly correct.

[00:19:38] Speaker 04:
That is our position.

[00:19:39] Speaker 04:
The constitutional violation is complete for every professional student.

[00:19:45] Speaker 04:
And to the extent there's a factual question of whether Commissioner Christian varies from what's written, he testified, he applies it as written because he needs to address the limited number of seats in these professions.

[00:20:02] Speaker 04:
It's why these professions were selected.

[00:20:04] Speaker 04:
They have a limited number of seats and he wants to control the proportionality of in-state to out-of-state.

[00:20:11] Speaker 04:
And so I think that the policy is unconstitutional on its face.

[00:20:16] Speaker 04:
The district court recognized that.

[00:20:18] Speaker 04:
And it was applied to people like Hagan and other people like Bennett and all of these plaintiffs.

[00:20:25] Speaker 04:
And that's the end of the story.

[00:20:27] Speaker 04:
The question about to what degree people were residents or for how long they were residents, that's a temporal issue.

[00:20:36] Speaker 04:
This question of constitutionality is addressed at the beginning.

[00:20:41] Speaker 04:
their intent to remain in their Dama silent state and the question of damages, a remedial question that would be dealt with the district court later is a question that comes after the constitutionality of the statute itself is addressed.

[00:20:55] Speaker 00:
And if the court were to find that the policy provision is a per se violation of Landis,

[00:21:05] Speaker 00:
That would then create standing for all of the students if only under the futility doctrine?

[00:21:13] Speaker 04:
All students for at least nominal damages and all students Having an opportunity to have the policy applied though.

[00:21:21] Speaker 04:
The problem we're dealing with here is one of timing people did not get a fair shake before because the policy said what it said and applied and students

[00:21:32] Speaker 04:
even if it's just lip service to other factors, ultimately, they were all cited the rule that says they can't be students.

[00:21:39] Speaker 04:
And there's, on summary judgment, you have to assume that that one in those letters carried the day.

[00:21:46] Speaker 03:
I was just going to confirm.

[00:21:48] Speaker 03:
In other words, it's your position.

[00:21:50] Speaker 03:
This is what I assume from your answer to Judge Maggio's question.

[00:22:02] Speaker 03:
The fact that the university considered other factors is irrelevant.

[00:22:07] Speaker 04:
Absolutely.

[00:22:08] Speaker 04:
It allowed people to present evidence of other factors.

[00:22:11] Speaker 03:
But it's meaningless.

[00:22:13] Speaker 04:
On summary judgment, you can look at Bennett and there's nothing he didn't do.

[00:22:16] Speaker 04:
So you have to conclude that Commissioner Christian is not varying because that's a clear case where if he was going to vary, there's nothing else to hold against him.

[00:22:25] Speaker 04:
He did every one of the things they asked.

[00:22:27] Speaker 04:
Driver's license, voting, taxes, registration,

[00:22:32] Speaker 02:
everything okay we'll give you some time for a bottle thank you

[00:22:42] Speaker 01:
Good morning, Your Honors, and may it please the court, Dale Shungert for the University System and the other appellees.

[00:22:48] Speaker 01:
This case is not about a permanent or irrebuttable presumption of residency or non-residency.

[00:22:54] Speaker 01:
As this court recognized in Carlson v. Reed, due process concerns arise only when the state purports to be concerned about residency

[00:23:04] Speaker 01:
but then preclude students from presenting factors that clearly bear on that determination.

[00:23:10] Speaker 01:
The Montana University system rule does not do that.

[00:23:14] Speaker 01:
The residency policy is applied rebuttably through exceptions, through individualized determinations by the commissioner, and through a multi-level appeal process that considers objective evidence of domicile and intent.

[00:23:28] Speaker 01:
The commissioner reviewed the plaintiff's circumstances and concluded, based on the facts, that they did not make Montana their permanent home.

[00:23:36] Speaker 01:
And that conclusion was borne out by the facts.

[00:23:39] Speaker 01:
Every plaintiff but one moved from Montana shortly after graduation.

[00:23:44] Speaker 01:
The undisputed facts also defeat the plaintiff's standing.

[00:23:49] Speaker 01:
Almost all the plaintiffs fail to timely take even basic steps to show residency, like registering to vote, getting a Montana driver's license, or registering their car.

[00:23:58] Speaker 01:
They no longer reside in Montana, face no future application of the rule, and seek only retrospective relief for a subsidy they were never entitled to receive in the first place.

[00:24:09] Speaker 01:
This case, therefore, falls well outside Blandis.

[00:24:11] Speaker 01:
It involves a permissible domicile-based standard

[00:24:14] Speaker 01:
for allocating a limited public benefit applied case by case, not a categorical bar.

[00:24:19] Speaker 01:
The district court's judgment should be affirmed.

[00:24:22] Speaker 03:
So in the first policy that we're dealing with, what's your response?

[00:24:28] Speaker 03:
What do we do with the fact that it says the policy provides that an out-of-state student admitted to a professional degree program is not eligible for reclassification as an in-state resident and shall remain

[00:24:43] Speaker 03:
classified as an out-of-state student for the duration of the student's enrollment in the professional program.

[00:24:51] Speaker 03:
I think the very next paragraph... Isn't that clear?

[00:24:54] Speaker 03:
What more do you need?

[00:24:55] Speaker 01:
As the district court said, the exceptions temper that absolute language.

[00:25:01] Speaker 01:
The next paragraph in the policy says notwithstanding the requirements.

[00:25:05] Speaker 01:
has these exceptions.

[00:25:06] Speaker 01:
And I think this is where the Supreme Court's decision in Weinberger's recent selfie is important.

[00:25:12] Speaker 01:
Weinberger was decided two years after Flanders, and the courts there said, okay, we're going to clarify Flanders and the other cases that apply to rear rebuttable presumption.

[00:25:23] Speaker 01:
That was the case that involved surviving spousal benefits from a deceased wage earner.

[00:25:29] Speaker 01:
And the rule was that you had to be married nine months before the surviving spouse was entitled to those benefits.

[00:25:34] Speaker 01:
There was no individualized exception.

[00:25:36] Speaker 01:
But the court said, but there were individual determinations, but there were exceptions.

[00:25:41] Speaker 01:
So if the deceased spouse had adopted the wage earner's child or they had... Those are pretty narrow exceptions though, like cover-up members of armed forces and things of that nature.

[00:25:52] Speaker 02:
Well, it's not a broad-based exception.

[00:25:55] Speaker 01:
Two points, Your Honor.

[00:25:57] Speaker 01:
First of all, I think the exception that someone is if they're employed in Montana full-time, which is considered 30 hours a week, that applies to the spouse, the student, and the dependents of the wage earner if they didn't move to Montana for the purpose of coming to school.

[00:26:14] Speaker 01:
I think that's a pretty broad exception.

[00:26:16] Speaker 01:
I'd also point out at

[00:26:18] Speaker 01:
this is the new policy, but it was in both policies, ER 31, there's an affidavit, which is kind of a catch-all, an affidavit of intent for extraordinary circumstances, and that allows students to show extraordinary circumstances, why they couldn't meet the requirements of the policy.

[00:26:40] Speaker 02:
That applied only in the

[00:26:43] Speaker 02:
the later policy, right?

[00:26:44] Speaker 01:
No, that's applied in both policies.

[00:26:46] Speaker 01:
So it's it's it's year 31.

[00:26:51] Speaker 01:
It's subsection one c five in the old policy.

[00:26:55] Speaker 01:
And it's subsection c three in the in the I'm sorry, in the old policy.

[00:27:06] Speaker 01:
First was the new.

[00:27:07] Speaker 03:
I stopped too soon because the next sentence after the one that I had read provides a student classified as out of state who maintains the initial classification was an error.

[00:27:20] Speaker 03:
They only seek reclassification pursuant to the procedures of this policy prior to the start of the initial term of enrollment or matriculation into the program.

[00:27:35] Speaker 03:
So in other words, they had to do it before, they had to satisfy, before they started the program.

[00:27:42] Speaker 03:
And once they're into that program, they're precluded.

[00:27:46] Speaker 01:
Generally that's true, but there are exceptions.

[00:27:49] Speaker 01:
That is what it says, but there's also the affidavit and intent for extraordinary circumstances, and there are exceptions.

[00:27:53] Speaker 01:
The old program?

[00:27:55] Speaker 01:
In the old one?

[00:27:55] Speaker 01:
In the old one, yes, Your Honor.

[00:27:57] Speaker 01:
Again, where is that?

[00:28:06] Speaker 01:
It's ER20, excuse me, ER24, 1C sub 3.

[00:28:15] Speaker 03:
ER24.

[00:28:18] Speaker 03:
What's the C what?

[00:28:20] Speaker 01:
C3.

[00:28:25] Speaker 01:
allows and then it's similar language, somewhat different.

[00:28:28] Speaker 01:
It gives an example under the new policy, uh, ER 31, but that gives, uh, students an opportunity to prove extraordinary circumstances.

[00:28:37] Speaker 03:
Yeah.

[00:28:37] Speaker 03:
But how do you read that with the fact that you're in a professional program?

[00:28:43] Speaker 01:
The commissioner applies this to all the requirements and he's, he testified very clearly about this.

[00:28:48] Speaker 01:
He looks at the totality of the circumstances.

[00:28:50] Speaker 01:
for each student and makes a determination to determine whether they made Montana their permanent home.

[00:29:00] Speaker 02:
I guess my problem is that the only evidence that he has the ability to waive these requirements is his testimony.

[00:29:07] Speaker 02:
Is that right?

[00:29:08] Speaker 01:
Well, no, there's a concrete example.

[00:29:10] Speaker 01:
And this is SCR 93-94.

[00:29:11] Speaker 01:
It's a law student who did not meet the requirements of the policy.

[00:29:17] Speaker 01:
And he said, you know what?

[00:29:19] Speaker 01:
He had moved away, I think, in fifth grade because of a family illness, moved to Arizona for medical care.

[00:29:25] Speaker 00:
But Council, that example in the record is the letter dated August 12th, 2024, which was after the rule was amended to remove the language that I've referred to and Judge Paia has referred to as to professional students.

[00:29:39] Speaker 00:
And this letter was actually also after this lawsuit was filed in June of 2023, correct?

[00:29:44] Speaker 01:
It was, but the commissioner testified that that's how they've always applied the policy.

[00:29:50] Speaker 01:
And he gave an example.

[00:29:51] Speaker 01:
So another example is that if a student, I think he mentioned that a student was denied reclassification because she hadn't registered to vote.

[00:30:05] Speaker 01:
She came back and said, well, I didn't register to vote in my previous case, in my previous state.

[00:30:10] Speaker 01:
And this is SER 273.

[00:30:12] Speaker 01:
Um, but, um, and I don't want to register to vote and, and that's an exception that is made under the policy, even though it doesn't comply.

[00:30:21] Speaker 02:
Is there any evidence in the prior regulation that, that, uh, the commissioner Christian has this authority?

[00:30:29] Speaker 02:
waive the requirements of BOR policy 94.1?

[00:30:33] Speaker 01:
It's not stated as such, but I think because the exceptions exist, because the affidavit of intent for extraordinary circumstances were the same in the old and the new policy, and then both policies, the final policy, I think it's the final or second to final paragraph of both policies, give the student the opportunity to present all information that they think are important.

[00:30:56] Speaker 01:
And in fact,

[00:30:58] Speaker 02:
But what are we supposed to do that the, you know, the appellants disagree with that, that that authority exists?

[00:31:03] Speaker 02:
So is that a factual dispute that we have to then allow to go to summary judgment or is that a legal question that we can answer?

[00:31:10] Speaker 01:
It's a legal question in the district court was right to conclude that it was undisputed.

[00:31:13] Speaker 01:
I mean, it was it was undisputed the government that the commissioner has exercised that authority that he did.

[00:31:20] Speaker 01:
And that's how that he he viewed the policy.

[00:31:22] Speaker 01:
And that's how he's always applied the policy.

[00:31:24] Speaker 01:
And so I do think that's undisputed, and especially when we're looking through this lens of qualified immunity, obviously,

[00:31:31] Speaker 01:
There's no injunctive declaratory relief, talking about whether the law was clearly established.

[00:31:37] Speaker 01:
Under Weinberger v. Salfie, the court there said, you don't even have to make individual determinations.

[00:31:44] Speaker 01:
The widow in that case, she couldn't make her case that it was a legitimate marriage.

[00:31:49] Speaker 01:
I mean, obviously that rule was to prohibit sham marriages.

[00:31:53] Speaker 01:
And the court said, you know, we've got these exceptions.

[00:31:56] Speaker 01:
They're failure and error, but they were exceptions.

[00:31:59] Speaker 01:
And there was no requirement for individual determinations.

[00:32:01] Speaker 01:
Montana's policy goes beyond what Weinberger resalfi required by making these individualized determinations on appeal.

[00:32:12] Speaker 01:
And I think the commissioner said,

[00:32:15] Speaker 01:
repeatedly throughout his deposition, SCR 155 and SCR 220, a couple of examples that he looks at everything and he wants to determine.

[00:32:27] Speaker 01:
Now, it is a rigorous policy and that's especially so.

[00:32:31] Speaker 01:
Keep in mind too, Volandas only dealt with undergraduate students.

[00:32:34] Speaker 01:
Can anyone appeal Commissioner Christensen's decisions?

[00:32:38] Speaker 01:
Correct.

[00:32:38] Speaker 01:
Anybody can appeal to the Board of Regents.

[00:32:40] Speaker 01:
The Board of Regents?

[00:32:41] Speaker 02:
Has that ever happened?

[00:32:42] Speaker 01:
It has and some of the plaintiffs in this case did that.

[00:32:45] Speaker 01:
And then what did they do?

[00:32:46] Speaker 02:
The Board of Regents.

[00:32:47] Speaker 02:
They affirmed.

[00:32:48] Speaker 02:
They affirmed.

[00:32:49] Speaker 02:
Does the Board of Regents have the ability to waive all these requirements as well?

[00:32:53] Speaker 01:
They do.

[00:32:54] Speaker 01:
I mean, they have absolute authority over the policy.

[00:32:57] Speaker 01:
And these weren't, as the court asked my friend,

[00:33:04] Speaker 01:
these weren't most of these weren't difficult questions and most of them they you know the the commissioner cited this is ser 124 to 148 in the letters cited multiple reasons because most of these plaintiffs didn't even complete basic steps so they're challenging these professional degree policy requirements but they didn't even take basic steps to establish residency for the 12 months to start that clock that 12 month clock and bethany neiman is a good example she uh she uh uh

[00:33:34] Speaker 01:
applied to for voter for voter registration the day she sat she sought reclassification and i think beth bethany emin is a good example of that after she was already admitted to the university it was after she'd already admitted she'd been under this policy she would have done she would have been prescient enough to

[00:33:52] Speaker 03:
know that she was going to go to the University of Montana School of Law a year earlier and start the whole process at that time.

[00:33:59] Speaker 01:
That's kind of ridiculous.

[00:34:01] Speaker 01:
Well, that's an option, because this is a valuable, portable benefit.

[00:34:04] Speaker 01:
And so Flanders even said, look, universities can make virtually certain that people didn't move to the state to go to school.

[00:34:13] Speaker 01:
And the evidence that Commissioner Christian said was that most times when a student

[00:34:18] Speaker 01:
in a professional degree program, moves from out of state, and then immediately starts school, most of the time they leave after school is done.

[00:34:27] Speaker 01:
Because it is a terminal degree, it is a portable benefit, and it's a valuable one.

[00:34:33] Speaker 00:
I have a follow-up question, please, counsel.

[00:34:35] Speaker 00:
So if we look at the decision in Carlson versus Reed, and that says that under Vlandis, quote, as limited by Weinberger versus Salfie, a state violates due process where it creates a university tuition rate scheme that purports to be concerned with residency, but then applies an irrebuttable presumption, precluding those seeking to meet its test of residency

[00:35:01] Speaker 00:
the opportunity to show factors clearly bearing on the issue.

[00:35:08] Speaker 00:
I'm still stuck with that provision of subsection H, where it appears to me that for professional students only, they are anchored in time, back when they originally applied and entered the program.

[00:35:24] Speaker 00:
And their status is fixed in time, thereby preventing them

[00:35:28] Speaker 00:
the opportunity to establish themselves as bona fides residents, but also their record is locked in at that time too.

[00:35:37] Speaker 00:
So if we have a rule that says that we look at your circumstances in time before you even started your first day, because under that rule you have to have appealed before you've started into the program,

[00:35:52] Speaker 00:
If they're stuck there, how does that system allow the opportunity to prove they become a bona fide citizen?

[00:36:01] Speaker 00:
So that if someone enters the law school, moves to Montana six months before they start, enters the law school, maybe they had no intention of becoming a Montana resident when they moved there.

[00:36:13] Speaker 00:
But based on a change of circumstances, they meet the love of their life.

[00:36:16] Speaker 00:
They get a great job in Montana.

[00:36:19] Speaker 00:
Things change.

[00:36:20] Speaker 00:
And 100 percent, they want to, in a bona fide way, become a student.

[00:36:25] Speaker 00:
Under the four corners of subsection eight, prior to the 2023 revision,

[00:36:30] Speaker 00:
they could not change their status.

[00:36:33] Speaker 00:
Is that correct?

[00:36:34] Speaker 01:
No, that's not correct because the exceptions still apply.

[00:36:37] Speaker 01:
So despite that prohibition and the sort of absolute language in that prohibition, as the district court recognized, the exceptions do temper that policy because those are exceptions to even that professional degree requirement.

[00:36:52] Speaker 01:
So they can still apply for those exceptions while they're in school and that will be considered

[00:36:57] Speaker 00:
So my last question, thank you, is can you cite to me an example in the case law where the court looks beyond the four corners of the challenge provision to see how it was effectuated in practice.

[00:37:10] Speaker 00:
Even if the law or provision violates Vlandis, we can look outside the record of the rule and see in practice how it was handled.

[00:37:18] Speaker 01:
Well, I think in the qualified immunity case context that we're looking at

[00:37:22] Speaker 01:
the only defendant in this case that plaintiffs are focused on are Commissioner Christian.

[00:37:27] Speaker 01:
And so what he viewed and how he applied the policy is what is at issue.

[00:37:31] Speaker 01:
And he was very clear that he applies this policy irrebuttably, he understood the requirements, and that's why he looked at the totality of the circumstances

[00:37:41] Speaker 01:
in each of these appeals, even though the plaintiffs here, like I said, didn't even come close.

[00:37:47] Speaker 01:
Bennett came the closest, as my friend suggests, but even he worked for his father out of state while in law school and moved away shortly after law school.

[00:37:59] Speaker 03:
So can I just ask one or two other questions?

[00:38:03] Speaker 03:
Sure.

[00:38:03] Speaker 03:
Beleno.

[00:38:04] Speaker 03:
Beleno.

[00:38:05] Speaker 01:
Belena, I think?

[00:38:07] Speaker 01:
Belena.

[00:38:08] Speaker 03:
Belena actually

[00:38:12] Speaker 03:
You admitted in the answer that he had sought reclassification.

[00:38:15] Speaker 03:
Is that correct?

[00:38:16] Speaker 01:
Correct.

[00:38:17] Speaker 03:
Yeah.

[00:38:17] Speaker 03:
So there's no question about that.

[00:38:19] Speaker 01:
Correct.

[00:38:20] Speaker 01:
He never registered his do we know there's nothing in the in the record it indicates what happened to his class reclassification Well, it was I don't I think it would there was a gap in the record on that question and but look for it We couldn't find but but he was denied reclassification and Berlina never registered his car or registered to vote in Montana So he does but we don't have that in the record.

[00:38:42] Speaker 01:
Well, that is in the record That's 3 ser for 65 to 66 and ser 43 to 85, but we don't know

[00:38:50] Speaker 01:
what the commissioner did.

[00:38:53] Speaker 01:
Well, for Balina, I think that may be right, although you may be thinking of Hagen who didn't reply for reclassification.

[00:39:00] Speaker 01:
There's a little confusion on those two.

[00:39:04] Speaker 01:
Hagen actually didn't apply for reclassification and he was a student now.

[00:39:09] Speaker 01:
I think he didn't apply because he didn't make a great case to begin with because he didn't take many of the objective acts to establish the residency.

[00:39:21] Speaker 01:
Can I ask one more?

[00:39:21] Speaker 02:
So you're saying subsection C3

[00:39:26] Speaker 02:
is a catch-all exception to the bar.

[00:39:29] Speaker 02:
So is that how you read it?

[00:39:31] Speaker 01:
C3 under the old policy, C5 under the new, and that's how the commission.

[00:39:35] Speaker 02:
So only in the event that none of the above indicators are appropriate, the person seeking in-state status may file an affidavit of intent to establish residency.

[00:39:42] Speaker 01:
Correct.

[00:39:42] Speaker 02:
So you're saying that that could happen at any time?

[00:39:44] Speaker 02:
Correct.

[00:39:45] Speaker 02:
Even after matriculation?

[00:39:46] Speaker 02:
Correct.

[00:39:49] Speaker 01:
And then under the new policy, H,

[00:39:53] Speaker 01:
uh, the exceptions also apply the same way, uh, that it's, it's not withstanding that policy.

[00:39:58] Speaker 01:
And that's why the district court said those exceptions temper the absolute language of the policy itself.

[00:40:03] Speaker 03:
And it also, let me ask you, what does that mean?

[00:40:05] Speaker 03:
It says only in the event that none of the above indicators are appropriate, the person seeking in-state status may file an affidavit of intent to establish residency.

[00:40:17] Speaker 01:
Right.

[00:40:18] Speaker 01:
And the plaintiffs, I think most, if not all the plaintiffs did that.

[00:40:21] Speaker 01:
In this case, and that's the title is an affidavit of intent to establish residency, but it's basically showing and the new policy gives an example for somebody seeking refuge from domestic violence or or remaining in Montana as a as a minor when a parent moves from Montana to establish residency elsewhere.

[00:40:41] Speaker 01:
So there are a couple of examples, obviously, those are not exclusive.

[00:40:45] Speaker 01:
But those... So that just means that the student intends, you know, I'm going to do my best to become a... That that student has or is in the process of becoming a resident in their circumstances outside... But what does that practically, what does that mean?

[00:40:59] Speaker 03:
It just puts the university on notice that I'm going to try and become an in-state student?

[00:41:03] Speaker 01:
Well, no, it puts the university on notice and then the commissioner will review that and the university officials will review that.

[00:41:11] Speaker 03:
The notice of intent.

[00:41:13] Speaker 01:
It's like are did you yes and what it's asking is have you become a resident are you are there circumstances that justify that you show that you've made you want to make Montana your true fixed and permanent home and that so you know I think we're getting a little hung up on that you know that.

[00:41:29] Speaker 01:
to establish residency, but I think it's talking about that, you know, I have established residency.

[00:41:34] Speaker 01:
I want to be a Montana resident.

[00:41:37] Speaker 01:
And this is what I've done to establish that.

[00:41:39] Speaker 01:
And the law student at the record, 91 to 94, ER 91, 94, or SER 93 to 94, excuse me, I think that's a good example of how the commissioner views the policy and applies it, which

[00:41:53] Speaker 01:
Which one was that?

[00:41:54] Speaker 01:
That's SCR 93 to 94.

[00:41:56] Speaker 01:
That's the law student who didn't meet the policy.

[00:41:58] Speaker 01:
His parents had moved him away.

[00:42:00] Speaker 03:
Do you remember his name?

[00:42:02] Speaker 01:
I don't remember his name.

[00:42:03] Speaker 01:
In fact, I think it might be redacted.

[00:42:05] Speaker 01:
It's not a plaintiff.

[00:42:08] Speaker 01:
It's the one that the commissioner said, yeah, this person is obviously

[00:42:17] Speaker 01:
done what he needed to do to show that he is indeed made Montana's true fix and permanent home.

[00:42:23] Speaker 01:
And, and Atlantis itself said that this can be, that universities can make virtually certain of that fact.

[00:42:29] Speaker 01:
When tempered by Weinberger v. Salfie, I think that makes even, makes Montana's policy even further across the line as far as due process concerns.

[00:42:43] Speaker 02:
Sorry, just one last question.

[00:42:45] Speaker 02:
Just to make sure I got it right, that there's nothing in the policy that shows that the commissioner can grant residency notwithstanding the presumption.

[00:42:54] Speaker 02:
We're just relying on his testimony.

[00:42:56] Speaker 01:
His testimony and his reading of the policy that notwithstanding in the policy itself and the affidavit of intent and the fact that students are invited to present whatever information they want and trying to

[00:43:09] Speaker 01:
overcome their burden.

[00:43:10] Speaker 01:
Got it.

[00:43:11] Speaker 01:
Okay.

[00:43:11] Speaker 02:
Thank you.

[00:43:11] Speaker 02:
Any questions?

[00:43:12] Speaker 02:
Okay.

[00:43:12] Speaker 02:
Thank you, counsel.

[00:43:13] Speaker 02:
Thank you.

[00:43:13] Speaker 02:
We'll give you three minutes.

[00:43:16] Speaker 04:
Thank you, Your Honor.

[00:43:17] Speaker 04:
Very quickly, actions speak louder than words.

[00:43:21] Speaker 04:
Commissioner the amendments do not apply to G and H by the plain reading of that statute Commissioner Christian said that he applies You know a totality the circumstances, but the facts are he had never up to the time of his deposition He had never made an exception since 2012 ever he made one after his deposition when he testified He's never made one before that person had less going for them than mr. Bennett and

[00:43:50] Speaker 04:
But he let him through.

[00:43:51] Speaker 04:
That is not the kind of action that proves his words are true.

[00:43:55] Speaker 04:
On summary judgment, clearly a reasonable finder of fact could conclude that the policy is applied as written.

[00:44:02] Speaker 04:
Contrary to Carlson's or Christian's statement, Bolina did not have a vehicle, did not vote.

[00:44:10] Speaker 04:
That's why he didn't register.

[00:44:11] Speaker 04:
That's why he didn't vote.

[00:44:13] Speaker 04:
Some of these individuals

[00:44:15] Speaker 04:
Well, there's a general categorization that they didn't do what they needed to, but actually Neiman did everything.

[00:44:22] Speaker 04:
Bennett did everything.

[00:44:24] Speaker 02:
Bolina did everything that applied to him.

[00:44:26] Speaker 02:
Can you respond to the point that C3 in the old policy suggests that you could apply for residency notwithstanding everything else that's happened?

[00:44:35] Speaker 02:
You mean the affidavit of intent?

[00:44:37] Speaker 02:
Yeah, only in the event that none of the appropriate indicators are appropriate, the person seeking in-state status may file an affidavit of intent to establish residency.

[00:44:43] Speaker 04:
All these students did.

[00:44:44] Speaker 04:
they all filed affidavits of intent all of the name plaintiffs didn't do any good after the one year after the period after articulating yeah let's see the problem is you can't really do anything under the new policy and under well the old policy you couldn't do anything under the new policy you couldn't do anything unless you did more than 12 months is that you could file this affidavit and say notwithstanding that policy I am a resident no matter what

[00:45:08] Speaker 02:
And they all did.

[00:45:09] Speaker 02:
And what's important is you then can see that there is an ability to appeal the decision.

[00:45:14] Speaker 02:
And so it is irrebuttable, even if it's, it is rebuttable, even if it was never, that authority was never exercised.

[00:45:21] Speaker 04:
No, no, they all filed affidavits and the affidavits did them absolutely no good.

[00:45:27] Speaker 04:
None of them had any ties.

[00:45:29] Speaker 02:
Yeah, but there's a difference between the exercise of that discretion and the authority for that discretion.

[00:45:33] Speaker 02:
I mean, I think Vlandis would care more about the authority, not whether or not it was actually exercised.

[00:45:39] Speaker 04:
Sure.

[00:45:39] Speaker 04:
And what we have here is a record that shows that there was never an exception made until after the commissioner was deposed.

[00:45:45] Speaker 04:
The record here shows that the rule was irrebuttable on its face.

[00:45:49] Speaker 04:
The district court even found that it was unconstitutional as applied to these plaintiffs because there's a, while you could point to facts that might result in a different conclusion, clearly these facts show that these students were barred because they were professional students, something Vlandis doesn't allow.

[00:46:06] Speaker 04:
And you know, Commissioner Christian said, and I'll finish with this, he did it.

[00:46:13] Speaker 04:
applied the rule, the way he did, to control the ratio for the limited number of seats in these programs.

[00:46:18] Speaker 04:
That's what he testified he did that's consistent with the written policy to keep these students corralled into non-resident and resident.

[00:46:27] Speaker 02:
Thank you, counsel.

[00:46:28] Speaker 02:
This case is submitted and we are adjourned for today.

[00:46:48] Speaker 00:
All stands adjourned.