Jadd, Matter of

Decision Date21 February 1984
PartiesIn the Matter of Robert I. JADD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John Cary Sims, Washington, D.C., of the D. of Columbia (Robert I. Jadd, Buffalo, N.Y., with him), for applicant.

Robert Muldoon, Boston (Paul R. Gupta, Boston, with him) for Bd. of Bar Examiners.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

Robert I. Jadd, a resident of the State of New York, a member of the bar of the State of Florida since 1974, and a member of the bar of the State of New York since 1975, challenges the constitutionality of the requirement of S.J.C. Rule 3:01, § 6.1.1, as amended, 382 Mass. 753 (1981), that an attorney seeking admission to the Massachusetts bar on motion must be a resident of the Commonwealth. 1 His principal claim is that the residency requirement violates the privileges and immunities clause of art. 4 of the Constitution of the United States. 2 The Board of Bar Examiners denied Mr. Jadd's application for admission on motion because he failed to meet the residency requirement of the rule. 3 Mr. Jadd then filed an application for a hearing before a single justice of this court. She reserved and reported the matter to this court for decision.

We conclude that the residency requirement of rule 3:01, § 6.1.1, violates the privileges and immunities clause. Judgment shall be entered that rule 3:01, § 6.1.1 violates the privileges and immunities clause and that the Board of Bar Examiners shall consider Mr. Jadd's application for admission to the bar without regard to his place of residency.

The privileges and immunities clause, appearing at art. 4, § 2, cl. 1, of the Constitution of the United States, 4 " 'establishes a norm of comity,' ... that is to prevail among the States with respect to their treatment of each other's residents" (citations omitted). Hicklin v. Orbeck, 437 U.S. 518, 523-524, 98 S.Ct. 2482, 2486-2487, 57 L.Ed.2d 397 (1978). See Austin v. New Hampshire, 420 U.S. 656, 660-663, 95 S.Ct. 1191, 1194-1196, 43 L.Ed.2d 530 (1975). That clause does not identify those subjects as to which equality of treatment is required. "Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally." Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1978). These rights are referred to as "fundamental" under the clause. Id. at 387-388, 98 S.Ct. at 1862-1863. There are some matters so related to State sovereignty that, even though they are important rights of a resident of a State, discrimination against a nonresident is permitted. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972) (the right to vote in State elections). See also Baldwin v. Fish & Game Comm'n of Mont., supra 436 U.S. at 383, 98 S.Ct. at 1860, and cases cited; Note, A Constitutional Analysis of State Bar Residency Requirements Under the Interstate Privileges and Immunities Clause of Article IV, 92 Harv.L.Rev. 1461, 1468-1470 (1979). Some interests or rights do not rise to the level of being fundamental and, accordingly, equality of treatment is not required. See Baldwin v. Fish & Game Comm'n of Mont., supra at 388, 98 S.Ct. at 1863 (discrimination against nonresidents concerning elk hunting for sport upheld). See also Massachusetts Council of Constr. Employers, Inc. v. Mayor of Boston, 384 Mass. 466, --- - ---, Mass.Adv.Sh. (1981) 2039, 2047-2049, 425 N.E.2d 346, rev'd on other grounds sub nom. White v. Massachusetts Council of Constr. Employers, Inc., --- U.S. ----, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983).

Where the right is fundamental, the privileges and immunities clause bars discrimination against nonresidents "where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). Where discrimination is challenged, it may be justified if there is a showing that nonresidents are a "peculiar source" of an "evil" the State is seeking to remedy (Hicklin v. Orbeck, supra, 437 U.S. at 525-526, 98 S.Ct. at 2487-2488, quoting Toomer v. Witsell, supra 334 U.S. at 398, 68 S.Ct. at 1163). If the State interest is substantial and some measure of discrimination is permissible, there must be a "reasonable relationship between the danger represented by non-citizens, as a class, and the ... discrimination practiced upon them." Hicklin v. Orbeck, supra 437 U.S. at 526, 98 S.Ct. at 2488, quoting Toomer v. Witsell, supra 334 U.S. at 399, 68 S.Ct. at 1163. The discrimination must not sweep more broadly than necessary to achieve the purpose that justifies the discrimination. See Hicklin v. Orbeck, supra 437 U.S. at 527- 528, 98 S.Ct. at 2488-2489; Massachusetts Council of Constr. Employers, Inc. v. Mayor of Boston, supra 384 Mass. at --- & n. 17, Mass.Adv.Sh. (1981) at 2049 & n. 17, 425 N.E.2d 346, L. Tribe, American Constitutional Law, § 6-33, at 410 (1978). It has long been held that the clause protects the right to "travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State." Hicklin v. Orbeck, supra 437 U.S. at 525, 98 S.Ct. at 2487, discussing the holding in Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449 (1871).

The Supreme Court of the United States has not yet decided whether the practice of law is a fundamental right protected by the privileges and immunities clause. We anticipate, however, that the Supreme Court would conclude that the practice of law, an important commercial activity, although that of a "learned profession," is a fundamental right. See Bates v. State Bar of Ariz., 433 U.S. 350, 368-372, 97 S.Ct. 2691, 2701-2703, 53 L.Ed.2d 810 (1977); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); In re Griffiths, 413 U.S. 717, 723-724, 93 S.Ct. 2851, 2855-2856, 37 L.Ed.2d 910 (1973). See also 92 Harv.L.Rev., supra at 1473-1475; Hafter, Toward The Multistate Practice of Law Through Admission by Reciprocity, 53 Miss.L.J. 1, 30 (1983). We have noted the question but have not had to express our views on the subject. Massachusetts Council of Constr. Employers, Inc. v. Mayor of Boston, supra 384 Mass. at --- n. 16, Mass.Adv.Sh. (1981) at 2048 n. 16, 425 N.E.2d 346.

Courts that have considered the question have concluded that the practice of law is a fundamental right for privileges and immunities purposes. Piper v. Supreme Court of N.H., 539 F.Supp. 1064 (D.N.H.1982), aff'd by an equally divided court, 723 F.2d 110 (1st Cir.1983). 5 Stalland v. South D. Bd. of Bar Examiners, 530 F.Supp. 155, 158 (D.S.D.1982). Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981). Sheley v. Alaska Bar Ass'n, 620 P.2d 640, 643 (Alaska 1980). Matter of Gordon, 48 N.Y.2d 266, 272, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979). Sargus v. West Va. Bd. of Law Examiners, 294 S.E.2d 440, 444 (W.Va.1982). 53 Miss.L.J., supra at 30-34. We are aware of no case that holds to the contrary. 6 Contests under the privileges and immunities clause concerning residency requirements for admission to the bar have not been fought over the "fundamental" right question but rather have largely been fought over the question whether, under the principles set forth in the Hicklin case, the State has a sufficient interest in requiring residency so as to justify the discrimination. We turn to those cases.

Various State courts have found residency requirements for bar admission to be a denial of rights under the privileges and immunities clause. In Matter of Gordon, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979), the Court of Appeals of New York struck down, on privileges and immunities grounds, requirements that an applicant for admission to the bar by examination have been (1) a New York resident for the six months immediately preceding submission of his application for admission to practice, and (2) a New York resident at the time of his admission. 7 The New York court's broad reasoning in condemnation of its residency requirements reaches any residency requirement for bar admission, including admission on motion. 8 Id. at 272-273, 422 N.Y.S.2d 641, 397 N.E.2d 1309. The year after the Gordon decision, the Supreme Court of Alaska reached the same conclusion, on privileges and immunities grounds, in holding invalid a requirement that an applicant for admission to the bar by examination reside in Alaska for thirty days before the first day on which the bar examination is to be given. Sheley v. Alaska Bar Ass'n, 620 P.2d 640, 646 (Alaska 1980). Two years later the Supreme Court of Alaska struck down a requirement that an applicant for admission to the bar by examination be domiciled in Alaska on the date of admission. Noll v. Alaska Bar Ass'n, 649 P.2d 241 (Alaska 1982). In 1982, the Supreme Court of West Virginia held that a requirement that an applicant for admission by examination be a resident of West Virginia for at least thirty days before taking the bar examination was an unconstitutional denial of privileges and immunities. Sargus v. West Va. Bd. of Law Examiners, 294 S.E.2d 440 (W.Va.1982). That court's analysis seems fully applicable to a simple residency requirement as a condition for admission by examination or on motion.

On reasoning similar to that of the opinions of the State courts cited above, Federal District Courts have held that residency requirements for admission to the bar were unconstitutional in New Hampshire (Piper v. Supreme Court of N.H., 539 F.Supp. 1064 [D.N.H.1982], aff'd by an equally divided court, 723 F.2d 110 [1st Cir.1983] ), in South Dakota (Stalland v. South D. Bd. of Bar Examiners, 530 F.Supp. 155 [D.S.D.1982] ), 9 and in...

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