Gordon v. Committee on Character and Fitness

• Decision Date: 13 November 1979
• Parties: , 397 N.E.2d 1309 In the Matter of Harry G. GORDON for Admission to the Bar, Appellant, v. COMMITTEE ON CHARACTER AND FITNESS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 641

422 N.Y.S.2d 641

48 N.Y.2d 266, 397 N.E.2d 1309

In the Matter of Harry G. GORDON for Admission to the Bar, Appellant, v. COMMITTEE ON CHARACTER AND FITNESS, Respondent.

Court of Appeals of New York.

Nov. 13, 1979.

John Cary Sims, Alan B. Morrison, Washington, D. C., of the Bar of the District of Columbia, admitted on motion pro hac vice and Daniel Riesel, New York City, for appellant.

Robert Abrams, Atty. Gen. (Daniel M. Cohen, Asst. Atty. Gen., of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd. (b)).

OPINION OF THE COURT

COOKE, Chief Judge.

Appellant, a resident of North Carolina, mounts this challenge to the constitutionality of CPLR 9406 (subd. 2). That rule provides that a person may not be admitted as a member of the Bar of this State unless he furnishes proof "that he has been an actual resident of the state of New York for six months immediately preceding the submission of his application for admission to practice". ¹ Among other infirmities, it is claimed that the rule is violative of the privileges and immunities clause of article IV of the Federal Constitution. ² We agree with that contention.

A graduate of the University of Virginia Law School and member of the Bars of Virginia and North Carolina, appellant was employed as in-house counsel to Western Electric Company in New York City. After working in New York for over two years, appellant qualified for, took and passed the New York State Bar Examination in July, 1977. ³ Before he was notified of the results of the examination, however, appellant was unexpectedly transferred to North Carolina by his employer, where he presently resides.

Apparently under the dual impression that his prior New York residence qualified him for admission to the Bar ⁴ and that, by virtue of his employment, he was engaged in the practice of law in New York, appellant filed an application for admission to practice with the Committee on Character and Fitness of the First Department (Judiciary Law, § 90, subd. 1; CPLR 9402; 22 NYCRR 520.9). ⁵ In view of appellant's North Carolina residence, the committee deferred action on his application. Appellant thereupon challenged the residency requirement by petitioning the Appellate Division for admission without certification of the Committee on Character and Fitness (CPLR 9404). The Appellate Division denied the application, holding CPLR 9406 (subd. 2) constitutional (67 A.D.2d 215, 414 N.Y.S.2d 692). Although appellant relies upon a number of constitutional provisions in support of his claim that the residence requirement for admission to the Bar is unconstitutional, ⁶ it is necessary only to address the claim that the rule denies nonresidents the same privileges and immunities accorded residents.

The principal purpose of the privileges and immunities clause, like the commerce clause, ⁷ is to eliminate protectionist burdens placed upon individuals engaged in trade or commerce by confining the power of a State to apply its laws exclusively to nonresidents (Paul v. Virginia, 8 Wall (75 U.S.) 168, 180, 19 L.Ed. 357; Tribe, American Constitutional Law, § 6-32, p. 406). In essence, the clause prevents a State from discriminating against nonresidents merely to further its own parochial interests or those of its residents ⁸ (Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397; Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460). While the precise reach of the clause must await further clarification, it is settled that a State may not premise an individual's right to engage in his chosen occupation within its borders solely on residence. Thus, the clause has been consistently interpreted to prevent a State from imposing discriminatory burdens on nonresidents, whether by means of artificial trade barriers in the form of unequal licensing fees (Toomer v. Witsell, supra ), taxes imposed on out-of-State vendors (Ward v. Maryland, 12 Wall (79 U.S.) 418, 20 L.Ed. 449), or employment preferences granted only to residents (Hicklin v. Orbeck, supra ).

This is not to say, of course, that the privileges and immunities clause forbids a State from ever differentiating between residents and nonresidents. Matters which directly implicate its sovereignty, such as voting (Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274) or entitlement to public office (Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39), furnish ready examples of areas in which a State may constitutionally condition eligibility upon residence. Moreover, where the disparate treatment does not implicate "those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity", there is no requirement that the State treat resident and nonresident alike ⁹ (Baldwin v. Montana Fish & Game Comm., 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354). But those areas exempt from privileges and immunities protection are narrow and do not embrace the grant of a license to practice law.

No extended discussion is necessary to demonstrate that the right to pursue one's chosen occupation free from discriminatory interference is the very essence of the personal freedom that the privileges and immunities clause was intended to secure (Hicklin v. Orbeck, 437 U.S. 518, 524-525, 98 S.Ct. 2482, 57 L.Ed.2d 397, Supra; Ward v. Maryland, 12 Wall. (79 U.S.) 418, 430, 20 L.Ed. 449, Supra ). It is now beyond dispute that the practice of law, despite its historical antecedents as a learned profession somehow above that of the common trades, is but a species of those commercial activities within the ambit of the clause (cf. Bates v. State Bar of Ariz., 433 U.S. 350, 371-372, 97 S.Ct. 2691, 53 L.Ed.2d 810; Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 44 L.Ed.2d 572). From the standpoint of both the public and the legal profession itself, the practice of law is analogous to any other occupation in which an independent agent acts on behalf of a principal.

Nor can it be maintained that CPLR 9406 (subd. 2) works no invidious discrimination against nonresidents. An attorney admitted to practice in one State who desires to practice in New York must often give up an established practice and residence, move to New York and forfeit the right to engage in his or her chosen occupation for at least six months and often appreciably longer. One who desires to engage in a multistate practice, concentrating on a particular area of expertise, is effectively foreclosed from doing so by the requirements of CPLR 9406 (subd. 2). Those attorneys now employed by large corporations, currently comprising more than 10% Of the legal profession (Yovovich, The Tense Marriage Between Business and Lawyers, Barrister, Spring 1979, at p. 43), whose duties entail frequent interstate relocation are similarly penalized by the operation of the rule. ¹⁰ The disparity of treatment between residents of the State and nonresidents is manifest: given two equally qualified candidates who have passed the Bar examination (or, for that matter, meet the other requirements for admission on motion) and possess the requisite character and fitness, the rule would deny one admission based solely upon residence.

Where the State imposes a wide-ranging restriction which significantly impairs the efforts of nonresidents to earn a livelihood, the discriminatory action must surmount two distinct hurdles. First the governmental interest claimed to justify the discrimination must be carefully examined to determine whether that interest is substantial, that is, whether "non-citizens constitute a peculiar source of the evil at which the statute is aimed" (Toomer v. Witsell 334 U.S. 385, 398, 68 S.Ct. 1156, 1163, 92 L.Ed. 1460, Supra ). Assuming that nonresidents do indeed present a problem with which the State may legitimately address, the inquiry then focuses upon whether the means adopted to achieve that goal are narrowly drawn and are the least restrictive alternatives available (Hicklin v. Orbeck, 437 U.S. 518, 528, 98 S.Ct. 2482, 57 L.Ed.2d 397, Supra ).

It is undisputed that New York has a constitutionally permissible interest to assure that those admitted to the Bar possess knowledge of the law as well as the character and fitness requisite for an attorney (Judiciary Law, § 90; Law Students Research Council v. Wadmond, 401 U.S. 154, 159, 91 S.Ct. 720, 27 L.Ed.2d 749; Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796). But appellant has not been excluded from membership in the Bar due to any challenge to his knowledge of the law of this State or to his good character. Rather, the exclusion is based solely upon his residence in North Carolina a criterion which serves no purpose other than to deny persons the right to pursue their professional career objectives because of parochial interests.

There is nothing in the record to indicate that an influx of nonresident practitioners would create, or even threaten to create, a particular evil (within the competence of the state) to address. No valid reason is proffered as to why admission to practice law before the courts of this State must be made dependent upon residency. Indeed, aside from an oblique reference to the purported "dangers" said to be inherent in the licensing of nonresident lawyers, the State is at a complete loss to justify the blanket discrimination against nonresidents arising from the operation of CPLR 9406 (subd. 2). Nevertheless, some have attempted to identify reasons supporting residency requirements for admission to the Bar (see Note, 92 Harv.L.Rev. 1461, 1480). On the whole, however, these justifications serve only administrative convenience and thus are not closely tailored to serve a legitimate State interest (cf. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 42 L.Ed.2d 532).

The rationale most often used to uphold residency requirements is...