Strauss v. Alabama State Bar

• Decision Date: 17 August 1981
• Docket Number: Civ. A. No. CV 81-G-1041-S.
• Parties: Berney L. STRAUSS, Plaintiff, v. ALABAMA STATE BAR; Edward P. Turner, Jr.; P. Richard Hartley; Harry W. Gamble, Jr.; Charles R. Adair; Walter P. Crownover; H. Wayne Love; William D. Scruggs, Jr.; Warren B. Lightfoot; A. Stewart O'Bannon, Jr.; Joe C. Cassady; Ben H. Harris, Jr.; Joel P. Robinson, Jr.; Albert W. Copeland; Ludger D. Martin; Richard S. Manley; Jere C. Segrest; Broox G. Garrett; W. O. Kirk, Jr.; Nelson Vinson; Bob Faulk; Louis B. Lusk; J. Don Foster; T. Reuben Bell; John David Knight; Edwin C. Page, Jr.; Robert M. Harper; John F. Proctor; William Bruce Sherrill; Harold Albritton; Oliver P. Head; J. Gorman Houston, Jr.; Gary C. Huckaby; Gorman R. Jones, Jr.; William B. Matthews; A. Philip Reich, III; Charles E. Robinson; Robert Straub; H. Neil Taylor, Sr.; and Ted Taylor, in their official capacity as members of the Board of Commissioners of the Alabama State Bar; E. T. Brown, Jr., President of the Alabama State Bar; Harold V. Hughston, President-Elect of the Alabama State Bar; Jon H. Moores, Vice-President of the Alabama State Bar; and Reginald T. Hamner, Secretary of the Alabama State Bar, Defendants.
• Court: U.S. District Court — Northern District of Alabama

520 F. Supp. 173

Berney L. STRAUSS, Plaintiff, v. ALABAMA STATE BAR; Edward P. Turner, Jr.; P. Richard Hartley; Harry W. Gamble, Jr.; Charles R. Adair; Walter P. Crownover; H. Wayne Love; William D. Scruggs, Jr.; Warren B. Lightfoot; A. Stewart O'Bannon, Jr.; Joe C. Cassady; Ben H. Harris, Jr.; Joel P. Robinson, Jr.; Albert W. Copeland; Ludger D. Martin; Richard S. Manley; Jere C. Segrest; Broox G. Garrett; W. O. Kirk, Jr.; Nelson Vinson; Bob Faulk; Louis B. Lusk; J. Don Foster; T. Reuben Bell; John David Knight; Edwin C. Page, Jr.; Robert M. Harper; John F. Proctor; William Bruce Sherrill; Harold Albritton; Oliver P. Head; J. Gorman Houston, Jr.; Gary C. Huckaby; Gorman R. Jones, Jr.; William B. Matthews; A. Philip Reich, III; Charles E. Robinson; Robert Straub; H. Neil Taylor, Sr.; and Ted Taylor, in their official capacity as members of the Board of Commissioners of the Alabama State Bar; E. T. Brown, Jr., President of the Alabama State Bar; Harold V. Hughston, President-Elect of the Alabama State Bar; Jon H. Moores, Vice-President of the Alabama State Bar; and Reginald T. Hamner, Secretary of the Alabama State Bar, Defendants.

Civ. A. No. CV 81-G-1041-S.

United States District Court, N. D. Alabama, S. D.

August 17, 1981.

Gould H. K. Blair, Birmingham, Ala., for plaintiff.

William H. Morrow, Jr., Montgomery, Ala., for defendants.

MEMORANDUM OPINION

GUIN, District Judge.

This cause came before the court upon the verified complaint filed by the plaintiff in which he sought a preliminary injunction requiring the Alabama State Bar Association to allow him to take the July 1981 bar examination. He further requested a declaration that the residence requirement for taking the bar examination is unconstitutional, and a permanent injunction preventing the defendants from enforcing that provision. By order of this court entered July 16, 1981, a preliminary injunction issued, ordering the Alabama State Bar to allow the plaintiff to take the July 1981 examination.

At the preliminary injunction hearing, counsel for defendants admitted that the facts of the case are as set forth in the plaintiff's affidavit, that there was no need for further evidentiary hearing, and that the question to be decided was purely a question of law. The plaintiff subsequently filed a motion for summary judgment and it is upon that motion that the court now acts.

The uncontroverted facts of this case are relatively simple. Mr. Strauss, a native of Mobile, Alabama, attended Tulane Law School. There he studied the commonlaw curriculum with a view toward returning to Mobile to practice law, and, during the summers, clerked for Mobile firms. His senior year, Mr. Strauss applied and was certified to take the Alabama bar exam by the Committee on Character and Fitness. Mr. Strauss, however, accepted employment with the firm of Phelps, Dunbar, Marks, Claverie & Sims in New Orleans, and therefore withdrew his application for the Alabama bar examination. Subsequently, Mr. Strauss was admitted to the bar of the Supreme Court of Louisiana and has practiced law with the Phelps firm for the past three years.

Desiring to practice law in his home state, Mr. Strauss again made application to take the Alabama bar examination administered July 27 through 29, 1981. In doing so, plaintiff was required to pay $310.00 for the privilege of sitting for the bar inasmuch as he was an out-of-state resident. In-state residents had to pay only $135.00 for the same privilege. Presumably, one of the reasons that the plaintiff had to pay more than twice as much as an Alabama resident for the same privilege is that out-of-state residents must fill out an additional application to the National Conference of Bar Examiners, a nationwide investigatory service which examines each applicant's qualifications and moral character. The Committee on Character and Fitness notified the plaintiff on or about July 2 that his application had been rejected because, as Mr. Strauss readily admits, he did not meet the residence requirement. As stated in Mr. Strauss's affidavit, to meet that residence requirement would have necessitated quitting his job in New Orleans, moving to Alabama for at least three weeks prior to the examination, and, since the results of the July examination would not be known for about four months, during which time he would be unable to practice law, would result in substantial loss of income.

In plaintiff's verified complaint, he alleges that he "has been damnified in the deprivation of his liberty interest without due process of law in manner aforesaid and has, moreover, been denied a privilege otherwise accorded a citizen of the State of Alabama by reason of his Louisiana residence." The plaintiff's claim arises under the privileges and immunities clause of Article IV, Section 2 of the United States Constitution and the fourteenth amendment thereto.

The residence requirement under attack constitutes a portion of Rule IVA of the Rules Governing Admission to the Alabama State Bar,¹ issued January 1981, and reads as follows:

RULE IV

WHO ENTITLED TO ADMISSION BY EXAMINATION

A. Prelegal Requirements.

Any citizen of the United States or resident alien who has filed a declaration of intent to become a United States citizen, and who is above the age of twenty-one years, having complied with the requirements of Rule I hereof, and whose character and fitness have been approved by the Committee on Character and Fitness and who is, at the date of filing of the application, a bona fide resident of the State of Alabama and is in fact a resident of the State of Alabama at the time of certification to sit for the bar examination, is entitled to be examined for admission to the Bar of Alabama, at any examination held as herein prescribed, ....

(Emphasis added.) Since certification to applicants usually issues three weeks prior to commencement of the examination, the Committee on Character and Fitness established, as an administrative interpretation of Rule IV A, the requirement that an applicant actually reside in Alabama for three weeks prior to the examination. The plaintiff attacks both the residence requirement and the administrative interpretation. Having considered the rule, the arguments and submissions of counsel and applicable law, this court concludes that, for the reasons stated herein, the residence requirement violates the privileges and immunities clause of the United States Constitution and that the defendants should be enjoined from enforcing that requirement.

In support of the residence requirement, the defendants cite numerous cases from the early 1970's in which courts upheld residence requirements of as long as six months.² These cases predate those relied upon by the plaintiff and were decided before the Supreme Court decisions in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), and Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), which revitalized the privileges and immunities clause.³ The cases relied upon by plaintiff, on the other hand, decided after the Hicklin and Baldwin cases and relying upon them, present more persuasive authority and support a conclusion that the Alabama residency requirement does not pass constitutional muster.

For example, in Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979), a non-resident of New York successfully challenged the New York six-month residency requirement for applicants to the bar. In a well-reasoned opinion, the New York Court of Appeals relied on the recent Hicklin decision as well as the Supreme Court decisions in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (allowing advertising for attorneys) and in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (allowing published legal fee schedules), in holding that the residency requirement in question violated the privileges and immunities clause. Based on those and other Supreme Court cases, the New York court concluded that "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 privileges and immunities clause." 422 N.Y.S.2d at 644, 397 N.E.2d at 1312.

In reaching its decision, the Gordon court noted that the residence requirement worked an invidious discrimination against nonresidents inasmuch as an attorney admitted to practice in another state would have to move to New York and give up an established practice and residence for several months in order to fulfill the New York requirement. The residence rule also precluded one who desired to concentrate in a particular area of expertise from engaging in a multistate practice. 422 N.Y.S.2d at 644, 397 N.E.2d at 1312.

The New York court enunciated a test consisting of two distinct hurdles which the discriminatory restrictions must surmount in order to stand. First, the governmental interest asserted to justify the discrimination must undergo careful examination to determine whether such interest is substantial, "that is, whether `non-citizens constitute a peculiar source of the evil at which the statute is aimed.'" 422 N.Y.S.2d at 645, 397 N.E.2d at 1313, quoting Toomer v. Witsell, 334 U.S. 385, 398, 68 S.Ct. 1156, 1163, 92 L.Ed. 1460 (1948). If nonresidents do in fact constitute a problem which the state legitimately may address, the question then becomes "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 2488, 57 L.Ed.2d 397, supra)." 422 N.Y.S.2d at 645, 397 N.E.2d at 1313.

Although a state has a constitutionally permissible interest in determining that those admitted to its bar possess both requisite knowledge and character, ...