Kathryn A. Piper v. Supreme Court of New Hampshire

PIPER, Plaintiff, Kathryn Appellee, A. HAMP-

SUPREME COURT OF NEW

SHIRE, Defendant, Appellant.

No. 82-1548. Appeals,

United Court of States

First Circuit.

Argued Nov. 1982. May

Decided Hampshire from the New border.

yards of is admitted to the state Ver- She .bar permission for mont. In 1979 she 1980 New February Hampshire sit for the Examination, signing a statement of Bar Hamp- in New intent to establish residence shire, Rule 42.1 After inves- required by as Hampshire Board of Bar the New tigation, good of moral found her to be Examiners approved request. of her She character and was notified on the examination and took had it and passed 1980 that she April to the eligible become for admission in establishing a residence New bar Hampshire.2 a letter to the clerk then sent Piper requesting Hampshire Supreme Court New residency re- to the state’s exception an personal cir- upon changed based quirement N.H., Gross, Concord, with L. Martin cumstances, the recent particularly most Soden, Martha Sulloway whom Hollis & 13,1980, the clerk May of a child. On birth Gen., Gordon, Legal Div. of Atty. V. Asst. request her that her the court informed brief, Counsel, Concord, N.H., were on „On 8, 1980, denied. November had been defendant, appellant. petition” a “formal Su- Piper filed N.H., Concord, with whom Jon Meyer, request her for an repeating preme Court Backus, A. Manches- Law Offices of Robert denied on De- petition was exception. brief, ter, N.H., plaintiff, appel- were on 31, 1980. cember lee. a com- Pipér filed March On CAMPBELL, BOWNES District Court Before in the United States plaint BREYER, Judges. alleging Circuit Hampshire, District of New for the re- residency bar New that CAMPBELL, Judge.

LEVIN H. Circuit deprived her of quirement this is whether appeal The issue raised citizenship guaranteed immunities of Court Rule Hampshire Supreme Constitution, New in- burdened article IV of to the state bar applicants requiring commerce, equal violated the terstate Hampshire is constitu- reside within New A pendent protection clause. find that it is. tional. We claim, charging 311:2, was violated N.H.Rev.Stat.Ann. Rule Piper A. lives Kathryn Plaintiff-appellee alleged. Waterford, Vermont, than 400 in Lower Hampshire, Piper New Court of part 42 states in 1. Rule (D.N.H.1982). Any person in the United States domiciled State of is a resident of the and who either Hampshire “is is one who of New A resident inten- a statement of or filed New place abode or both has a domiciled or of New tion to reside in the State politi- any city, other town or and in pro- this State eligible apply for examination shall be has, State, and who qualifications possessed herein- cal subdivision vided he is actions, through a cur- demonstrated provided. all of his after place According designate Justice filed Chief of abode to an affidavit rent intent interpreted King, presence place physical has been for the principal John W. this rule his Hamp- require applicant to the New’ that an others.” exclusion of all future to the indefinite of the state be a bona fide resident shire bar 21:6. N.H.Rev.Stat.Ann. is administered. the oath of office the time that the district court to the of each court, motion for sum did on a The district standards, including Rule 42 violated found that state court to set bar mary judgment, Piper immunities clause. legal profes- bar standards.4 Hampshire, 539 features, Court of distinguishing has certain sion Observing (D.N.H.1982). unique relationship, grounded particular subject process to due regulations were nation, judi- with the history of our review, the district and equal protection the state and before which cial branch of the defer special first reasoned that court lawyer practice. is licensed particular governing states in normally ence accorded highest court of To hold that henceforth exempt not Rule 42 their own bar could to enact lacks constitutional and immuni privileges from conventional embodied in New requirements like those 1071, Piper, F.Supp. ties 539 review. See 42 Rule Hampshire Supreme Court 717, Griffiths, 413 93 citing In re U.S. the distribu- major modification in signal 2851, (1973) (equal protec 37 L.Ed.2d 910 system our federal powers tion of under —a tion), v. Board of Bar Examin and Schware contemplated rearrangement ers, 353 77 S.Ct. privileg- precedents construing the cited Then, claim). (1957) (due process applying es and immunities clause. and immunities privileges, standard immunities clause of privileges and forth in Hicklin v. clause as set provides IV of the Constitution article Orbeck, 437 98 57 of each shall be enti- Citizens “[t]he the district court found L.Ed.2d Privileges tled to all and Immunities unconstitutional, holding the rule it Citizens in several States.”5 against discriminated nonresidents who side the commerce placed along peculiar were not shown to “constitute the Constitution, designed clause in the was addressed, source of the evil” the rule the several fusing serve the essential role of “closely meeting that it was not tailored” to to-preserve into one nation and states objectives, ensuring that members comp concept balance essential to the were ethical and “structural 1072-74, Hampshire, Austin v. New Piper, F.Supp. cit of federalism.” etent.3 525-28, 1191, 43 L.Ed.2d 530 ing Orbeck, 437 Hicklin v. (1975). at 2487-2488. See Toomer 1156, 1162, 92 L.Ed. 1460 I. end, Supreme (1948). Towards this clause “state has held violative of the principles We believe that of feder Court seeking against nonresidents require giving greater weight alism than discrimination suggested to us that Feldman Appellant 3. The district court also held that it was not has summary Supreme requires instant case for af the dismissal of the bound Wilson, disagree. Feldman jurisdiction. We firmance in Wilson v. 430 U.S. lack of (1977), (mem.), aff'g, that a federal district court not sit holds (D.Or.1976), although application F.Supp. of a bar because review of a state court’s Court, requirement particular individual’s case. the issue was raised before the indicates, however, Feldman federal courts in that case did not decide the lower court generalized privileges jurisdiction constitu- whether or not and immunities have to hear Piper’s residency requirement. challenges prohibited to state bar rules. tional a bar ques- Piper, F.Supp. challenge generalized. at 1068-71. Accord Stal She does not is Examiners, case, applies but rather land v. South Dakota Board of Rule 42 in her tion that requirement residency (D.S.D.1982). But see Canfield v. that such a contends Attorneys Wisconsin Board of Professional in all cases. unconstitutional Competence, (W.D.Wis. vacated, Cir.1981). 1980), (7th applies 645 F.2d 76 Although the clause 5. terms citizens, and immunities of to the equally case, apply argument construed to 4. After was heard in this has been oral granted state resi- privileges and immunities decided District of Colum- Orbeck, Appeals Feldman, bia Hicklin v. Court of dents. (1983). 2486 n. n. involving state restrictions other trade, occupation, their cases ply their calling dispositive within the of the bar mem- occupations a common pursue or Orbeck, 437 Hicklin v. State.” bership issue. The Court has 2482, 2487, pointed out that the and immuni- (1978). In Hicklin Court struck down a prohibit clause does not states from ties resi favoring qualified Alaska state law using citizenship ever jobs dents over nonresidents See, e.g., Bald- distinguish among persons. The Court said pipeline. Alaska win v. Montana Fish and Game Commis- biasing employ justify order to sion, to show Alaska had opportunities, ment distinctions “Some were “the noncitizens the burdened merely between residents and nonresidents which the stat source of the evil” peculiar com- reflect the fact that this is a Nation to alleviate. Hicklin sought ute Precisely of individual states.” Id. posed 2487-2488, 98 S.Ct. at and immunities because the- 385, 68 citing Toomer preserve a federal designed clause was 1156, (1948). 1460 In addi 92 L.Ed. point there has to be some where system, tailored” tion, “closely statute had to be given linked to affiliation with a limitations this it addressed. Under problem to the. Were the validity. state are accorded the Court looked requirement, latter forbid all distinctions made clause to methods of whether there were alternate citizenship, concept of state basis goal the state’s that would be less reaching meaningless. statehood would become See 437 at burdensome on nonresidents. v. Montana Fish and Game Com- Baldwin 2487-2488. 98 at 1860; mission, 383, 436 98 to our years, the last few no court Until Varat, Interstate “Citizenship” and State knowledge suggested has ever 487, (1981). 520 Equality, 48 U.Chi.L.Rev. stripped privileges and immunities sovereign necessarily The idea of a state limit court of the supreme state’s of residents political community implies Recent to state residents. membership bar provide under laws to certain organized courts, however, like the a number of ly, community. and services to the benefits case, have ana present court in the district Varat, it has supra, Consequently, at 520. in terms lyzed residency requirements that states base always been assumed E.g., similar to those set forth in Hicklin. upon residency. distinctions certain Board of Bar Ex Dakota Stalland South v. Montana Fish Game Com- Baldwin (D.S.D.1982); 155 aminers, 530 She 383, mission, 98 S.Ct. at 1860. Association, 640 v. Alaska Bar 620 P.2d ley stated, Baldwin, As the (Alaska 1980); Gordon v. Commission Privileges suggest that the No one 266, Fitness, 48 N.Y.2d Character requires a and Immunities Clause State (N.Y.1979). 397 N.E.2d N.Y.S.2d who declines polls person open of law as indistin Viewing is the one assert the State callings, these guishable private from other right claims a to vote. where he rigorous two-part courts have for an qualification is true as to same in Hicklin to bar test discussed Nor office of the State..... elective v. Alabama requirements. See Strauss all of its laws always apply amust State Bar, (N.D.Ala.1981); anyone, resi- equally its services or all Association, 649 P.2d 241 Noll v. Alaska Bar nonresident, may request it who dent or (Alaska 1982); Virginia Sargus v. West do. so to Examiners, Board of Law S.E.2d (W.Va.1982). surprisingly, they have Not (citations at 1860 omit- 98 S.Ct. Id. failed to satis requirements found that the Blumstein, Dunn v. ted). Cf. exacting scrutiny. fy (1972) (equal 31 L.Ed.2d 92 S.Ct. requiring state offended not believe, however, protection We do residents); Chimento bona fide voters to be analysis developed by (D.N.H.1973) (1981) Stark, F.Supp. 1211 (same); League Usery, National of Cities v. residency requirement gov- (seven-year travel), aff’d 49 L.Ed.2d ernor does not violate (same).6 mem., 38 L.Ed.2d between relationship control that, suggest when principles These membership state bar and a state’s over determining policy whether a state is valid sovereign political as a ability to function under the close. The bar is a vital com body very rela policy’s one must take into account which, ponent judiciary togeth of. to function as tionship ability to the state’s legislative er with the executive unique sovereign entity. poli Where branches, ingredient constitutes an essential directed at various cy question simply government. Although not state private enterprise, goal forms of employees, lawyers long been con .have outweighs any national unification threat to desig sidered “officers of the court.” This It is in independent the state’s existence. fact that nation does not refer to the law required such cases that the state is to show capable exercising judi are officials yers very strong precise justification Griffiths, In re powers, cial see upon citizenship. discrimination based E.g., Hicklin v. States, (1973); Cammer v. United (work related to 5.Ct. L.Ed. 474 but Hampshire, oil Austin v. New pipeline); rather to the closely fact 1191, 43 (com with, important respon associated and have tax); muter Toomer sibilities to a state’s court. In our adver (shrimp 92 L.Ed. 1460 S.Ct. sary system, competent and dedicated law Where, however, fishing). policy the state yers are essential in order for a state’s is also tied to the state’s to closely ability one the es judicial system undoubtedly — sovereign government, function as a we sovereignty sential attributes of state —to shifts, goal think the balance with the Thus, properly. function national then unity being outweighed by Court has said that state’s interest the policy favoring maintenance of a feder lawyers “especially great since regulating cases, al In the literal system. such man are primary gov essential date of the and immunities clause administering justice ernmental function of ” either have no may applicability, may Virginia Bar, .... Goldfarb v. State 773, 792, 95 2004, 2016, 44 rigorously. Equal Employ Cf. S.Ct. Opportunity Wyoming, ment Commission v. also Bates v. Bar of See State Arizona, _ U.S. _, _, 1054, 1061, S.Ct. (1983) (commerce (1977). Accordingly, 75 L.Ed.2d 18 clause lim L.Ed.2d 810 state bar usually granted ited have been sub regulation regulations where federal addresses indisputable matters that are attributes of stantial deference the federal courts. Appeals abil District of Court of sovereignty impedes state’s Columbia Feldman, _ U.S. _, _ n. ity to function in areas of traditional sover 1303, 1315 16, eign Virginia (1983); Hodel v. n. 75 L.Ed.2d 206 activity); Surface Mining Association, County & Reclamation Middlesex Ethics v. Gar- Committee relationship League progeny 6. Because of the close historical of Cities and its concern re- upon congressional power between the and immunities clause strictions under the clause, follow, however, precedent and the commerce clause. It does not under the commerce deciding they inapplicable congression- If latter be useful in cases under the are here. power which is former clause. Hicklin v. 437 U.S. at al under the commerce plenary, generally considered is restricted S.Ct. at 2490-2491. The dissent argues sovereignty, surely the commerce cited the demands of state then clause cases respected inapposite they are interests must be when nevertheless here because similar state attempted legislate power. Congress deal with limitations a na- federal has not policy. dissent is of course correct tional that National (1979) (per curiam). Association, 457 In that case two den Bar attorneys challenged out-of-state an Ohio J., (Brennan, concurring).7 grant court’s refusal them a hearing on applications their to appear pro hac vice. between a state’s special relationship This judicial system against Although militates the Court there not have bar and did occa challenged under regulations bar treating us, sion to decide the issue now before and immunities clause as sim- strength lends to the view that regulation pri- over ply species another given states are to be considerable defer regulations pro- Rather vate commerce.8 regulating practice ence in of law in highest court deter- mulgated by a state’s attorneys. their state nonresident of those entitled mining qualifications Court first found that the out-of-state at it and the inferior state practice before federally protected right had no torneys degree very tribunals deserve a substantial practice law in another state. The Court deference, the heart of a they go founding stated that of the Re “Since itself as such and ability identify state’s licensing regulation of law public, entity. A state political to'function as a left yers exclusively has been to the States indeed were it without impotent would be and the District of Columbia within their officers such as its own require jurisdictions. The. respective pre States allegiance.9 to owe it a citizen’s attorneys qualifications scribe the for admission to regulations where Accordingly professional and the standards of are we the strict test enun at issue believe conduct.” Id. at at 700. The controlling, in Hicklin is not and that ciated Court further stated that a Circuit Second long valid so as reason regulations case, Spanos Corp., Theatres Skouras objectives. legitimate related to ably (2d denied, Cir.) (en banc), cert. F.2d position for our Leis v. support We find Flynt, 439 U.S. Bates, course, regulate 2016. In held that a total ban a state cannot its bar 7. Of way deny applicant by attorneys price advertising such a speech, as to an freedom of violated Bar Examin- emphasized see Schware v. Board of amendment. The there first 796, ers, 232, 752, 1 L.Ed.2d 353 U.S. 77 S.Ct. holding, point narrowness of its a which equal protection of the laws. See In re made clear in Ohralik v. Ohio State Bar was Association, Griffiths, 717, 2851, 93 S.Ct. 98 S.Ct. But, L.Ed.2d 910. even when a court reviews a (1978), which held that states can regu- first amendment attack a state bar by lawyers seeking in-person ban solicitation lation, a federal court must be mindful that profit. arising for under the first clients Cases practice in “Admission to a State and before its appear provide guidance amendment little necessarily belongs courts to that State.” how the and immunities clause Schware, S.Ct. at 761 regulations. The should be to state bar (Frankfurter, J., concurring). Middlesex Cf. long applied to bar first amendment has been County Ethics v. Garden State Bar Commission See, regulations. e.g., Schware v. Board of Bar Association, 457 U.S. 102 S.Ct. Examiners, (federal abstain from L.Ed.2d 116 hearing court should (1957), unique problem and the challenge pending first amendment privileges and immunities clause cases of bal- proceeding). committee state ethics unity ancing sovereignty with national is Bar, Virginia Piper cites State

8. Goldfarb presented not in the first amendment area. Arizona, Bar of and Bates We, course, suggest do not that a state bar 9. (1977), operate require- cannot without a merely argument practice a that the of law is Many apparently abandoned ment. states have private activity. form of commercial We do point requirements in recent times —a our such not believe that these cases stand for proposition. dissenting colleague end of his makes at the In Goldfarb the question opinion. a resi- not whether arrangement held that minimum fee estab dency requirement is desirable but whether voluntary lished bar association violated judicial decide this branch of each state Act, 15 1. The Court’s § the Sherman U.S.C. itself, question for has been done since the opinion made clear that it no dimi “intend[ed] founding Republic. of the authority regulate of the State to nution of professions.” 421 U.S. at pro found a New York New residency require- which had practice ment ensures that who lawyers regulation privileg hac vice violative within the state at least their begin clause was “limited if not es and immunities they may there. While thereafter move R. rejected entirely” by Norfolk & Western away without their bar member- forfeiting Beatty, Co. v. it ship, predict seems reasonable to (mem.), aff’g, most people go quali- who trouble of (S.D.Ill.1975), rejecting a case a constitu fying for the bar in their state of residence tional to the Illinois hac vice challenge pro expectation remaining do so with the Flynt, rule. Leis v. n. there.11 practicing It is also reasonable to import at 701 n. 4. While the full rule, conclude that as a result of that New for bar residency require statement Hampshire lawyers likely to be more uncertain, supports ments is it our conclu familiar with local rules and concerns than rigorous privileges sion that the and immu would otherwise they important- be. More private nities utilized in the em residents of the state are more ly, likely area ployment inappropriate here. Had personally than nonresidents to feel affect- rigorous the traditional appli review been justice ed the administration of within cases, pro regula cable hac vice those Consequently, the state. resident tions, if they ultimately up even had been may feel more dedicated to their New held, have been subjected would far Hampshire practice than would nonresident more exacting scrutiny they than were.10 attorneys. might This lead resi- attorneys willing accept

dent to be more pro bono cases and other forms of perform II. state, within it public might service but test, restrictive Rule 42 Under also induce resident attorneys practice a does not violate the and immuni higher quality thereby improving ties clause of the Constitution. The rule is justice administration within state. reasonably furthering related to the state’s argues that it legitimate regulating interest in the bar so be easier for it to miscreant discipline law- as to assure the competence and moral who reside within the state than those yers character of its members. See Goldfarb v. live Although who elsewhere. would be Bar, Virginia State theoretically possible for the state to disci- 572; 2004, 44 L.Ed.2d Schware Board of pline nonresident we see attorneys, nothing Examiners, Bar unreasonable in the state’s belief that L.Ed.2d 796. disciplinary apparatus would be more effec- This, support argues, possible find further We for our decision state. she makes it summary from the in living affirmance former New residents else- Wilson, v. there, Wilson practice potential where to still with the (1977), (mem.), aff’g, 416 defeating pur- for poses some or even most of the F.Supp. (D.Or.1976). While the district Hampshire says New are served court in that case did not decide dency requirements resi- whether residency rule. But the Court of New privileges violated the and Hampshire might have concluded that not clause, squarely immunities presented the issue was many Hampshire lawyers pull New will both appellant’s jurisdictional state- up practice stakes and continue to in the state. Although ment to the Court. because might And it further believe that the bureaucra- unnecessary of our decision we find it to decide cy required keep comings track of such and by finding whether the district court here erred that Wilson was not note trouble, goings espe- would not be worth the “binding” precedent, see cially many since moves out of state —to Wash- 3, supra, we believe that Wilson at least D.C., ington, example, to work for the demonstrates the disinclina- government may be of short duration. If we — rigorously residency require- tion to review bar apply “closely were to Hicklin’s tailored” lan- ments. guage strictly, might our be differ- conclusions residency ent. But we think the bar rules of Piper places great emphasis upon the fact highest pass court of a state need not Hampshire attorney strip that New does not an through finegrain such a sieve. membership upon moving of bar his out of amendment. Al- if it of the fourteenth deterrent stronger serve as tive and authori- asserting rely upon court did not reach these did not have the district though might it be Similarly, nonresidents. over ty them claims, it useful to discuss we believe spe- impose matter to as a practical easier now. briefly members upon bar obligations “service” cial immu- privileges analysis Our non- not have a substantial if the bar does readily Piper’s claim resolves nities clause If nonresidents are component. resident was noted clause claim. As commerce right, they are membership as of entitled to clauses, above, each the two constitutional not to feel also have likely they IY, history share a related in article found in a services perform pro forced to bono under either of the clauses precedent they where do reside. state under the deciding brought cases useful Furthermore, residency v. Hicklin other. burden- unreasonably is not requirement why 2491. We see no reason our may take the New Applicants some. and immuni- under the resid- prior to bar examination Hampshire com- apply Piper’s should not ties clause are not re- Hampshire. They in New ing clause claim. knowing merce to the state before quired to move there. can they whether or not finding that Rule 42 is related- Bar, 520 v. Alabama State Compare Strauss goal disposes legitimate (rule applicants F.Supp. requiring claim because she prior equal protection live within state for three weeks Piper’s violates the taking the bar against no discrimination has asserted clause); v. Gordon Committee an enhanced form warranting class suspect Fitness, 48 N.Y.2d on Character Moreover, federal courts of review.12 (require- 397 N.E.2d N.Y.S.2d challenges equal protection have considered prior months to live within state six ment have uni residency requirements to bar privileg- examination violates taking bar except formly upheld requirements clause). appli- Nor are es and immunities imposed cases in which the state those Hampshire required the New cants to Compare requirement. lengthy.durational lengthy for any within the state to reside Bondurant, Rose being time admitted period of before six- (1972) (upholding 460, 34 L.Ed.2d 312 indeed, soon and, may leave they bar — Kline residency requirement); month All supra. note thereafter. (N.D.Miss.1972) Rankin, F.Supp. reside applicant is that requires requirement) 90-day residency (upholding his or at the time of within New Zant, Lipman with v. Van such a re- do not find her admission. We residency require (N.D.Miss.1971) (one-year its re- given at all unreasonable quirement clause); protection equal ment violated goals. legitimate the state’s lationship to Examiners, 317 of Law Keenan Board 42 does not hold that Rule We therefore 1350, 1360 (E.D.N.C.1970) (one-year immunities clause. violate unconstitutional). requirement imposes III. rule Because the New clearly does requirement, no durational claims under the com- also raised Piper equal protection not violate equal protection clause and merce right infringe upon of interstate might arguably the do form of review 12. An enhanced McCarthy Philadelphia Ser v. Civil See upon Piper’s justified infringed travel. if the rule Commission, See, Shapiro e.g., 424 U.S. v. vice interstate travel. of curiam). Compare (1976) (per Thompson, 394 U.S. Williams, however, Zobel v. Piper, (1969). can make J., concurring) (Brennan, residency re- Non-durational no such claim. infringed upon state (right where question, to travel quirements, which as the one in upon length of equal predicates benefits permit benefits to receive out-of-staters state). state, upon moving the the within into as state residents n the jurisprudence concerning privi- IV. leges and immunities re- present clause at complaint, also raised a Piper In her for flects a concern the rela- appropriate claim, pendent charging law that Rule state tionship between state and in- sovereignty Rev.Stat.Ann. violates Second, regula- terstate equality. a state’s district not decide 311:2. The court did tion of admission to the bar is not a state the due the special issue. Given deference is, the policy majority posits, as “close- concerning bar regu state court in matters tied to the ly ability state’s to function a lations, the awkwardness in particular and sovereign government.” Ante at 829. the reviewing volved in our whether state’s has a highest misinterpreted court I.

statute, decline this claim. we to resolve Gibbs, See United Mine Workers v. has established 1130, 1139, 16 L.Ed.2d 218 point at analysis which undertake an of a (1966) (“[P]endent jurisdiction is doctrine against whether a state’s discrimination discretion, right.”). of not of plaintiff’s necessary nonresidents is for the state to sovereign as a government. function See Reversed. Baldwin v. Fish and Game Commission of BOWNES, Circuit Judge (dissenting). Montana, L.Ed.2d 354 (1978). per This I majority’s opinion dissent from the be court formed a when determining I accept cause cannot brothers’ unwar my whether the privileges and immunities

ranted from deviation the established con applies discrimina particular stitutional that I believe principles should Note, tion at all. A See Constitutional guide our in this While the decision ease. Bar Analysis Residency Require of State majority concedes that Privileges ments Under the Interstate clause is applicable to New IV, Immunities of Clause Article Harv.L. attempt to restrict admission (1979). Rev. residents, to the state bar to state it shack les the thrust of the clause’s command. In Baldwin Fish and Game Commission majority drastically the burden reduces Montana, that New to justify bears dis L.Ed.2d the Court the types discussed nonresidents, against by adopt crimination purview privi- interests within the ing “political exception function” leges and immunities clause. It noted that traditional and immunities clause the clause been interpreted prevent “has test which was established imposing from unreasonable bur- Court in Toomer 68 dens on citizens of other States their 92 L.Ed. 1460 and is the pursuit of common within callings today. Hicklin v. 437 U.S. State; ownership disposition 518, 525-28, 2482, 2487-2488, State; privately held property within (1978). L.Ed.2d the majority’s Under and in access to courts of State.” test, when the state action at issue is “close (citations Id. at at 1860 omit- ly tied to the state’s ability to function as a ted). hand, On the other the privileges and .sovereign government,” ante impeded immunities clause has never exacting scrutiny by Toomer mandated state in discriminating against noncitizens Hicklin is watered down a showing respect voting with qualifying that the against discrimination nonresidents public office. bears a rational to some relationship legiti Suffrage always ... has been understood mate goal. to be tied to an individual’s identification

I believe this approach wrong See, for two with particular e.g., State. Dunn First, adjust reasons. it is unnecessary Blumstein, [92 prevailing standard review to one No 274] functions; political account suggest Immuni- Privileges

107 that is nation composed fact this of open to individ- requires ties Clause states). who declines to assert polls person to a ual he is the one where the State The is majority’s approach flawed be- to vote. The is true right same claims - sovereignty cause it reintroduces considera- , an of as for- elective office qualification to tions at an improper point privileges Ellisor, Kanapaux the State. analysis. In immunities clause so do- (1974); 891 S.Ct. 136] [95 ing, unnecessarily the lessens the majority Stark, P.Supp. 353 1211 Chimento v. justify burden a state must bear to discrim- aff’d, 414 (NH), summarily 802 U.S. [94 If, indeed, against ination nonresidents. 125, 38 L.Ed.2d S.Ct. 89] the by the interest affected discrimination Baldwin, 436 at 98 S.Ct. at 1860. U.S. clause, the protected by is not the state t state need not trea Similarly, always to justify any preference need afforded re equally and nonresidents with residents But, protected, the interest is residents. if of laws and spect application of an rights the constitutional individual services. Id. stake, must are at and the state bear a case is to proper approach The heavy justify to the infringement. burden determine, whether the discrimina initially, My precedent of the on reading by relied tion nonresidents affects an interest against the absence of majority support reveals vitality of Nation “bear[s] ” attempt change proper for its to stan- Id.; at entity as .... see id. single majority correctly dard of review. The (elk hunting not basic to 98 at 1862 S.Ct. Orbeck, 437 Union; notes that Hicklin v. well-being of inter U.S. maintenance hunting suggests est not within of purview in elk S.Ct. clause). Once it privileges and immunities the commerce precedent under clause is by is the interest affected determined that helpful interpreting protected is discrimination 531-32, Id. at immunities clause. clause, must then the dis justify the state however, majority, at looks 2490-2491. under the test outlined crimination to a line clause cases of commerce in Toomer v. inapposite proper understanding of the L.Ed. S.Ct. clause. privileges and immunities in Hicklin v. reaffirmed clause and the commerce clause are similar because immunities 385-86, Baldwin, at at act a limit on a state’s ability both (state cannot confine state re 1861 — 1862 preferences to its own citizens to the grant when, rea sources to own residents without Hicklin, Thus disadvantage of noncitizens. son, right interferes with nonresident’s 2490-2491, at at refers id. livelihood; pursue right protected Court, cases rely in which the clause). politi and immunities A clause, ing on the commerce invalidated cal the initial part function to limit use in-state re states’.attempts determination of whether interest af Id. at sources state residents. purview privileg fected is within the (in at West v. Kansas Natural deciding es clause. In and immunities Gas, L.Ed. subject discrimination to the stric (1911), prohibition held Oklahoma’s necessarily tures of the the court in-state shipment natural out-of-state disparate determines that treatment of resi clause); Hicklin, gas commerce violates is not dents and nonresidents essential (in at 2491 Pennsylva identity preservation sovereign Virginia, nia v. West Baldwin, the state. See Court held West L.Ed. (privileges S.Ct. at 1860 Virginia’s requiring gas companies natural to vote and applicable clause never office; prefer residents violates commerce hold elective distinction between Hicklin, clause); reflects merely and nonresidents residents (in Packing Co. v. This conclusion Haydel, Foster is without foundation. In plaintiffs argued Norfolk Western the (1928), L.Ed. 147 Court they were constitutionally entitled to prohibits held commerce clause Louisiana’s represented by be in out-of-state Illinois in-state of attempt require processing 400 F.Supp. They counsel. at 236. relied to out-of- indigenous shrimp prerequisite Spanos on primarily v. Skouras Theatres The clause shipment). commerce Cir.) (in (2d banc), 364 F.2d 161 cert. Corp., majority, relied the National cases on denied, 385 U.S. League Usery, of Cities (1966), plain L.Ed.2d which held that a (1976), its _ presenting tiff a federal claim has a consti Wyoming, progeny, EEOC right tutional under and im privileges the S.Ct. 1054, _, (1983), L.Ed.2d 18 clause to munities have out-of-state Virginia Mining and Hodel v. Surface & appear on a vice pro counsel hac basis. Id. Association, Inc., Reclamation In Norfolk at 170-71. and Western the (1981), deal simply rejected court the notion that any with limitations the federal power existed. right 237-38. regulate nothing They say commerce. give The court did not scruti exacting less or the legitimacy about state of claim; ny gave scrutiny to the no at all. discrimination in favor of state residents. The asserts that Leis v. majority also

Flynt, 439 II. curiam), (per supports reducing appropriate the standards for re- Under to justify the burden a state bears discrimi solving privileges and immunities clause privileges nation under the and immunities cases, bar admission re- setting of clause the the instant case. First, cannot scrutiny. striction withstand The this argument, obvious flaw in which is of law the the is not within limited noted the is that did not majority, Leis function political exception range of discuss and immunities protected by interests fact, implicat In clause clause. was not immunities clause. ed the case vice pro because hac Supreme Court explained As on the statute issue did discriminate Baldwin v. Fish and Game Commission of of citizenship. basis distinction Montana, persons drawn was those were between who political exception function members of the bar and those who Ohio recognition “[sjome is a distinctions were not. merely between residents and nonresidents major Nor can I find support the fact that is a Nation reflect com- ity in the in Leis reference States, individual and are posed permit- summary to its affirmance in Norfolk and Id. ted ....” 98 S.Ct. at 1860. Co. v. Railway Beatty, Western no of rights There is exhaustive list must reserved to a state’s own citizens in be aff’g (S.D.Ill.1975). mem. 400 order to enable the state retain its sover- majority rejection asserts eign identity. In Baldwin and immunities claim identified to vote and right in Norfolk and Western indicates that legiti- office as hold elective interests rigorous standard review is citizenship. be tied to state mately should privileges and deal immunities clause eases guidance can found in cases Additional ing with regulation attorneys. argues It distinguish a state’s recognizing regulations that even if the ulti issue when between aliens and citizens such dis- mately upheld, had been would have they the state to re- necessary tinctions exacting been reviewed a far political under more tain status as a com- separate scrutiny. munity. as the political cases same function purpose line long

In a protection mounted equal aliens have exception to to citi attempts to states’ make challenges recognize that in Both certain areas clause. ain zenship participation qualification a a allegiance must have citizen’s to a state challenges benefit, and of these many state that properly special functions perform See, e.g., v. Nyquist have been successful. to its citizens. Basically, a state owes 2120, 1, 53 Mauclet, 432 U.S. govern require can those who state Griffiths, 413 U.S. (1977); L.Ed.2d 63 In re to uniquely or contribute it in a sover- (1973); 717, 93 37 S.Ct. way part political must be of the same eign 365, 91 Richardson, 403 v. U.S. Graham community governed. those as who 1848, 29 (1971); cf. Exam S.Ct. not fall Lawyers special do within this Engineers v. Flores de Ote ining Board of help individuals who group ro, 572, 96 49 L.Ed.2d65 S.Ct. functions. performing sovereign See (1976) (Puerto Rico cannot make United Note, civil en citizenship qualification for at conclu- supra p. States 1476-79. This license). gineering by sion was reached has an inherent recognized has a state it state to prohibit when refused allow a “ obligation preserve concep ‘to the basic aliens from for admission to the qualifying ” community.’ Sugarman of political tion state’s bar. 634, 647, 93 v. 413 Dougall, U.S. S.Ct. Lawyers occupy professional do indeed Dunn (1973) (quoting 37 L.Ed.2d 853 responsibility and influence positions of 330, 344, Blumstein, 405 92 v. S.Ct. U.S. impose them duties correlative (1972)). 31 L.Ed.2d 274 with their vital of access to the of the responsibility [T]his Moreover, pro- courts. virtue of their to the applies, qualifica- interests, aptitudes fessional and natural voters, hold- persons tions but also government lawyers have been leaders important nonelec- ing state elective or throughout country. of our history executive, po- legislative, judicial tive Yet, government not officials of they are sitions, di- participate for officers who being lawyers. virtue of Nor does formulation, execution, or rectly in the holding status of license perform of broad public policy review close to the core of the place one so go repre- the heart of functions is There ... him government. sentative as to make a formu- political process re- some rational citizenship “where bears of government policy. lator special demands lationship at Griffiths, 413 at 93 In re U.S. particular position.” (footnote omitted). at at Sugarman, Thus, access a state seeks limit when Sugarman, (quoting Dougall citizenship, the basis of it to the bar on Thus, J., (Lumbard, concurring)). to the deference would be not entitled in this area lines limited a state draw if tied its sov the limitation were given sovereign with the based on affiliation Rather, a restric ereign citizenship needs. special because of the state’s government should treated the same tion sovereign identity. need to retain its See affects citizenship qualification that Chavez-Salido, Cabell v. interests of the discriminatees. the economic (1982) (probation 70 L.Ed.2d 677 Chavez-Salido, at Cabell v. See Norwick, officers); Ambach v. 739-740; 438-39, at Ambach (1979) (public L.Ed.2d Connelie, Norwick, n. at teachers); Foley school immu n. 6. Under officers). (1978) (police must means that the state nities laid in Toomer and the test out satisfy This interfere with a state’s reluctance to sovereign identity serves Hicklin. protection of excluding its rule nonresidents III. justify To Hampshire must show from the bar New . Finally, even under the test laid out peculiar “constitute that nonresidents the majority, rule is irra- source of the evil at which [rule] Fouche, tional. Turner v. aimed,” Hicklin, 437 S.Ct. 362, Toomer, (quoting at 2487-2488 While on the one hand the state claims that 1163), and that the rule is prac- residence state is' necessary closely eradicating tailored to the evil non- properly Hampshire lawyer, tice as a New is, present. residents That the state requirement there is no that a re- lawyer goal through cannot achieve its a method Hampshire longer main New resident any would be onerous for nonresidents. day than the he or she is admitted to the Hicklin, Thereafter, the properly bar. admitted 2488-2489. New Hampshire cannot meet lawyer anywhere can live at all and still this burden. practice Hampshire. in New It is obvious of the purpose attempt rule is an The evils that New Hampshire claims practice to restrict of law in New present (1) ignorance nonresidents are: Hampshire to of that state. The rules; residents practice (2) local disregard for attempt is both unconstitutional and inef- state; developing good reputation fective. difficulty ensuring nonresidents’ availability proceedings for court and sub- closing, In I note the irony majority jecting them to disciplinary action. The opinion written those who aré members responsibility for these evils cannot be (Massachusetts) of a bar that has no resi- placed solely Any nonresidents. new dency requirements and a dissent written lawyer is ignorant local aby member of the New Hampshire bar out, rules. As the district court pointed practiced Hamp- who has in New developing good reputation is a function shire. “heart,” not the home. As to availa- reasons, For the I foregoing think the bility for court proceedings, many nonresi- rule is unconstitutional and dents are closer to New courts I judgment would affirm the of the district than are residents. New long- court. arm statute makes it as easy for the state to reach and discipline nonresident

as it is to reach and discipline residents.

Numerous less drastic and more closely

tailored alternatives are available to the

state. New Hampshire already requires all new lawyers to participate legal in a skills Kathryn PIPER, Plaintiff, Appellee, A. course soon after admission to the bar. Ad- continuing ditional legal require- education ments could be imposed. SUPREME COURT OF NEW HAMP- Similarly, SHIRE, Defendant, through Appellant. regulate mem- bers of the bar can control courtroom deco- No. 82-1548. rum and set professional standards for con- Court of Appeals, United States duct and trial practice. New Hampshire First Circuit. has an integrated bar association to which all lawyers who have been admitted to the Resubmitted June 1983. short, belong. must In as the district Decided Dec. found, court New Hampshire cannot show its exclusion of nonresidents from the bar is necessary to achieve any legitimate

goal.

Case Details

Case Name: Kathryn A. Piper v. Supreme Court of New Hampshire

Court Name: Court of Appeals for the First Circuit

Date Published: May 25, 1983

Citation: 723 F.2d 98

Docket Number: 82-1548

Court Abbreviation: 1st Cir.