Supreme Court of New Hampshire v. Piper
470 U.S. 274 (1985)
(Residency and Privileges and Immunities)
Kathryn Piper, a Vermont resident that lived only a few hundred yards from the New Hampshire border, took the New Hampshire Bar Exam, seeking a license to practice law in the state. New Hampshire required that all lawyers who practice in the state maintain New Hampshire residency. To be sworn in as a lawyer in New Hampshire, Ms. Piper needed to establish residency first. Ms. Piper requested that this be waived under special circumstances, which was denied. She sued, arguing that the residency rule violated the Privileges and Immunities Clause of the Fourteenth Amendment, that the right to practice law is a “fundamental right”. The court held that the Privileges and Immunities clause was designed to create a unified economy between the states and thus could regulate business between them. The practice of law is protected under the Privileges and Immunities Clause. As lawyers are not always officers of the state, New Hampshire has no business in discriminating against their lawyers’ residencies. Justice White’s concurrence agrees that Ms. Piper should be admitted to the bar, but disagreed with the majority’s constitutional justification for such. In his eyes, her close proximity to the state line should serve as a reason for why Ms. Piper should be admitted. Justice Rehnquist’s dissent argues that the practice of law differs across state lines, so much so that to practice in other states, lawyers must pass that state’s exam first. Because this industry is unique in that aspect, Justice Rehnquist argued that states should be allowed to require that members of the bar live within the state.
Kathryn Piper lives in Lower Waterford, Vermont, about 400 yards from the New Hampshire border. In 1979, she applied to take the February 1980 New Hampshire bar examination. Piper submitted with her application a statement of intent to become a New Hampshire resident. Following an investigation, the Board of Bar Examiners found that Piper was of good moral character and met the other requirements for admission. She was allowed to take and passed, the examination. Piper was informed by the Board that she would have to establish a home address in New Hampshire prior to being sworn in.
On May 7, 1980, Piper requested from the Clerk of the New Hampshire Supreme Court a dispensation from the residency requirement. Although she had a "possible job" with a lawyer in Littleton, New Hampshire, Piper stated that becoming a resident of New Hampshire would be inconvenient. Her house in Vermont was secured by a mortgage with a favorable interest rate, and she and her husband recently had become parents. According to Piper, these "problems peculiar to [her] situation . . . [warranted] that an exception be made."
On May 13, 1980, the Clerk informed Piper that her request had been denied. She then formally petitioned the New Hampshire Supreme Court for permission to become a member of the bar. She asserted that she was well qualified and that her "situation [was] sufficiently unique that the granting of an exception . . . [would] not result in the setting of any undesired precedent." The Supreme Court denied Piper's formal request on December 31, 1980.
The Rules of the Supreme Court of New Hampshire limit bar admission to state residents. We here consider whether this restriction violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2.
Article IV, § 2, of the Constitution, provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This Clause was intended to "fuse into one Nation a collection of independent, sovereign States." Recognizing this purpose, we have held that it is "[only] with respect to those 'privileges' and 'immunities' bearing on the vitality of the Nation as a single entity" that a State must accord residents and nonresidents equal treatment.
Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union. It is therefore not surprising that this Court repeatedly has found that "one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State."
There is nothing in Ward, Toomer, or Hicklin suggesting that the practice of law should not be viewed as a "privilege" under Art. IV, § 2. Like the occupations considered in our earlier cases, the practice of law is important to the national economy. The "activities of lawyers play an important part in commercial intercourse."
The lawyer's role in the national economy is not the only reason that the opportunity to practice law should be considered a "fundamental right." We believe that the legal profession has a noncommercial role and duty that reinforce the view that the practice of law falls within the ambit of the Privileges and Immunities Clause. Out-of-state lawyers may -- and often do -- represent persons who raise unpopular federal claims. In some cases, representation by nonresident counsel may be the only means available for the vindication of federal rights. The lawyer who champions unpopular causes surely is as important to the "maintenance or well-being of the Union," as was the shrimp fisherman in Toomer or the pipeline worker in Hicklin.
Lawyers do enjoy a "broad monopoly . . . to do things other citizens may not lawfully do." We do not believe, however, that the practice of law involves an "exercise of state power" justifying New Hampshire's residency requirement. A lawyer is not an "officer" within the ordinary meaning of that word. He "'makes his own decisions, follows his own best judgment, collects his own fees and runs his own business.'" Moreover, the state powers entrusted to lawyers do not "involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens."
Because a lawyer is not an "officer" of the State in any political sense, there is no reason for New Hampshire to exclude from its bar nonresidents. We therefore conclude that the right to practice law is protected by the Privileges and Immunities Clause.
The conclusion that Rule 42 deprives nonresidents of a protected privilege does not end our inquiry. The Court has stated that "[like] many other constitutional provisions, the privileges, and immunities clause is not an absolute." The Clause does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment, and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective. In deciding whether the discrimination bears a close or substantial relationship to the State's objective, the Court has considered the availability of less restrictive means.
There is no evidence to support appellant's claim that nonresidents might be less likely to keep abreast of local rules and procedures. Nor may we assume that a nonresident lawyer -- any more than a resident -- would disserve his clients by failing to familiarize himself with the rules. As a practical matter, we think that unless a lawyer has, or anticipates, a considerable practice in the New Hampshire courts, he would be unlikely to take the bar examination and pay the annual dues of $125.
There is no reason to believe that a nonresident lawyer will conduct his practice in a dishonest manner. The nonresident lawyer's professional duty and interest in his reputation should provide the same incentive to maintain high ethical standards as they do for resident lawyers. A lawyer will be concerned with his reputation in any community where he practices, regardless of where he may live. Furthermore, a nonresident lawyer may be disciplined for unethical conduct. The Supreme Court of New Hampshire has the authority to discipline all members of the bar, regardless of where they reside.
There is more merit to appellant's assertion that a nonresident member of the bar at times would be unavailable for court proceedings. In the course of litigation, pretrial hearings on various matters often are held on short notice. At times a court will need to confer immediately with counsel. Even the most conscientious lawyer residing in a distant State may find himself unable to appear in court for an unscheduled hearing or proceeding. Nevertheless, we do not believe that this type of problem justifies the exclusion of nonresidents from the state bar. One may assume that a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire. Furthermore, in those cases where the nonresident counsel will be unavailable on short notice, the State can protect its interests through less restrictive means. The trial court, by rule or as an exercise of discretion, may require any lawyer who resides at a great distance to retain a local attorney who will be available for unscheduled meetings and hearings.
In summary, appellant neither advances a "substantial reason" for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to its proffered objectives.
To deny a right guaranteed by Art. 4, Sec. 2, there must be a “substantial reason” to discriminate, and the discrimination must bear a close relationship to the proffered objectives.
Appellee, a resident of Vermont, was allowed to take and passed the New Hampshire bar examination. But pursuant to Rule 42 of the New Hampshire Supreme Court, which limits bar admission to state residents, she was not permitted to be sworn in. After the New Hampshire Supreme Court denied appellee's request that an exception to the Rule be made in her case, she filed an action in Federal District Court, alleging that Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The District Court agreed and granted appellee's motion for a summary judgment. The Court of Appeals affirmed.
Held: Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2.
(a) Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union. "[One] of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State." Moreover, although a lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community" and thus is not an "officer" of the State in any political sense. Therefore, a nonresident's interest in practicing law is a "privilege" protected by the Clause.
(b) A State may discriminate against nonresidents only where its reasons are "substantial" and the difference in treatment bears a close or substantial relationship to those reasons. None of the reasons offered by appellant for its refusal to admit nonresidents to the bar -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State -- meets the test of "substantiality," and the means chosen do not bear the necessary relationship to the State's objectives.
How the Justices Voted
Majority: Powell, joined by Burger, Brennan, White, Marshall, Blackmun, Stevens, O’Connor
New Hampshire's bar residency requirement violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The nonresident's interest in practicing law is a "privilege" protected by the Clause. Although the lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community." A State may discriminate against nonresidents only where its reasons are "substantial," and the difference in treatment bears a close or substantial relation to those reasons. No such showing has been made in this case.