821 F.3d 273
2d Cir.2016Background
- Ekaterina Schoenefeld, a New Jersey resident and attorney admitted in NY, NJ, and CA, practices from a NJ office and does not maintain a physical New York office.
- N.Y. Judiciary Law § 470 requires nonresident attorneys admitted in New York to maintain an “office for the transaction of law business” in New York; residents may use their homes.
- Schoenefeld sued, alleging § 470 violates the Privileges and Immunities Clause by burdening nonresidents’ right to practice law; the district court declared § 470 unconstitutional on summary judgment.
- On appeal the Second Circuit certified the statutory-construction question to the New York Court of Appeals, which held § 470 requires a physical in-state office.
- After the state court’s ruling the Second Circuit considered Schoenefeld’s Privileges and Immunities challenge in light of Supreme Court precedent (notably McBurney) and reversed the district court, upholding § 470.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 470’s in-state office requirement violates the Privileges and Immunities Clause | Schoenefeld: § 470 discriminates against nonresidents by imposing an extra cost (NY office) and thus abridges the right to practice law | State: § 470 serves non-protectionist state interests (service of process, regulation, accessibility); Court of Appeals construed § 470 to require a physical office | Court: No violation — plaintiff failed to show § 470 was enacted or maintained for a protectionist purpose; statute serves legitimate nonprotectionist aims and places nonresidents on comparable footing |
| Whether plaintiff must prove protectionist purpose to proceed | Schoenefeld: burden should be on state to justify discrimination after threshold showing | State: McBurney and precedent mean absence of protectionist purpose defeats claim; state may show nonprotectionist objective | Court: Under McBurney plaintiff must allege/offer proof of protectionist purpose; she did not, so claim fails |
| Whether historical origin and effects support inference of protectionism | Schoenefeld: § 470’s origin as exception to residency ban and its burdens support inference of protectionism | State: Office requirement historically aimed at ensuring in-state service; modern service alternatives and rules undermine protectionist inference | Court: Legislative history shows nonprotectionist service-of-process purpose; no evidence of economic protectionism |
| Whether § 470, as applied, unduly burdens nonresidents compared to residents | Schoenefeld: duplicative cost of maintaining NY office in addition to NJ practice creates undue burden | State: Costs are not shown to be greater than residents’ burdens; many resident attorneys have offices and various alternatives exist | Court: Effects do not demonstrate protectionist intent; similar rules in other circuits upheld; no tailoring inquiry required without proof of protectionism |
Key Cases Cited
- McBurney v. Young, 133 S. Ct. 1709 (U.S. 2013) (Privileges and Immunities Clause forbids state laws enacted for protectionist purpose; absence of proof of such purpose defeats claim)
- Supreme Court of N.H. v. Piper, 470 U.S. 274 (U.S. 1985) (practice of law is a privilege protected by the Privileges and Immunities Clause)
- Supreme Court of Va. v. Friedman, 487 U.S. 59 (U.S. 1988) (framework for evaluating resident/nonresident distinctions and need for substantial relation to state objective)
- Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371 (U.S. 1978) (Clause prevents States from discriminating against citizens of other States with respect to advantages of state citizenship)
- Schoenefeld v. New York, 748 F.3d 464 (2d Cir. 2014) (prior panel opinion certifying question on § 470’s minimum requirements)
- Schoenefeld v. State, 25 N.Y.3d 22 (N.Y. 2015) (New York Court of Appeals: § 470 requires a physical office in New York)
- Kleinsmith v. Shurtleff, 571 F.3d 1033 (10th Cir. 2009) (upholding requirement that trustees/attorneys maintain a place within the state against Privileges and Immunities challenge)
- Tolchin v. Supreme Court of N.J., 111 F.3d 1099 (3d Cir. 1997) (upholding a bona fide office requirement against Privileges and Immunities challenge)