723 F.2d 98 (1st Cir. 1983), 82-1548, Piper v. Supreme Court of New Hampshire

Docket Nº:82-1548.
Citation:723 F.2d 98
Party Name:Kathryn A. PIPER, Plaintiff, Appellee, v. SUPREME COURT OF NEW HAMPSHIRE, Defendant, Appellant.
Case Date:May 25, 1983
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 98

723 F.2d 98 (1st Cir. 1983)

Kathryn A. PIPER, Plaintiff, Appellee,



No. 82-1548.

United States Court of Appeals, First Circuit

May 25, 1983

Argued Nov. 5, 1982.

Page 99

Martin L. Gross, Concord, N.H., with whom Sulloway Hollis & Soden, and Martha V. Gordon, Asst. Atty. Gen., Div. of Legal Counsel, Concord, N.H., were on brief, for defendant, appellant.

Jon Meyer, Concord, N.H., with whom Law Offices of Robert A. Backus, Manchester, N.H., were on brief, for plaintiff, appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The issue raised by this appeal is whether New Hampshire Supreme Court Rule 42 requiring that applicants to the state bar reside within New Hampshire is constitutional. We find that it is.

Plaintiff-appellee Kathryn A. Piper lives in Lower Waterford, Vermont, less than 400 yards from the New Hampshire border. She is admitted to the state bar of Vermont. In 1979 she applied for permission to sit for the February 1980 New Hampshire Bar Examination, signing a statement of intent to establish residence in New Hampshire, as required by Rule 42. 1 After investigation, the New Hampshire Board of Bar Examiners found her to be of good moral character and approved of her request. She took the examination and was notified on April 18, 1980 that she had passed it and would become eligible for admission to the bar upon establishing a residence in New Hampshire. 2

Piper then sent a letter to the clerk of the New Hampshire Supreme Court requesting an exception to the state's residency requirement based upon changed personal circumstances, most particularly the recent birth of a child. On May 13, 1980, the clerk of the court informed her that her request had been denied. On November 8, 1980, Piper filed a "formal petition" to the Supreme Court repeating her request for an exception. The petition was denied on December 31, 1980.

On March 22, 1982, Piper filed a complaint in the United States District Court for the District of New Hampshire, alleging that New Hampshire's bar residency requirement deprived her of the privileges and immunities of citizenship guaranteed in article IV of the Constitution, burdened interstate commerce, and violated the equal protection clause. A pendent state law claim, charging that the Supreme Court's Rule violated N.H.Rev.Stat.Ann. 311:2, was also alleged.

Page 100

The district court, on a motion for summary judgment, found that Rule 42 violated the privileges and immunities clause. Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064 (D.N.H.1982). Observing that bar regulations were subject to due process and equal protection review, the district court first reasoned that the special deference normally accorded states in governing their own bar could not exempt Rule 42 from conventional privileges and immunities review. See Piper, 539 F.Supp. at 1071, citing In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (equal protection), and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 288 (1957) (due process claim). Then, applying the standard privileges and immunities clause analysis as set forth in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), the district court found the rule unconstitutional, holding that it discriminated against nonresidents who were not shown to "constitute the peculiar source of the evil" the rule addressed, and that it was not "closely tailored" to meeting its objectives, ensuring that members of the New Hampshire bar were ethical and competent. 3 Piper, 539 F.Supp. at 1072-74, citing Hicklin v. Orbeck, 437 U.S. at 525-28, 98 S.Ct. at 2487-2488.


We believe that principles of federalism require giving greater weight than did the district court to the right of each state court to set bar standards, including bar residency standards. 4 The legal profession has certain distinguishing features, in particular a unique relationship, grounded in the history of our nation, with the judicial branch of the state by and before which a particular lawyer is licensed to practice. To hold that henceforth the highest court of the state lacks constitutional power to enact requirements like those embodied in New Hampshire Supreme Court Rule 42 would signal a major modification in the distribution of powers under our federal system--a rearrangement not contemplated in any of the cited precedents construing the privileges and immunities clause.

The privileges and immunities clause of article IV of the Constitution provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." 5 The clause, placed along side the commerce clause in the Constitution, was designed to serve the essential role of fusing the several states into one nation and to preserve the "structural balance essential to the concept of federalism." Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975). See Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). Towards this end, the Supreme Court has held violative of the clause "state discrimination against nonresidents seeking

Page 101

to ply their trade, practice their occupation, or pursue a common calling within the State." Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 2487, 57 L.Ed.2d 397 (1978). In Hicklin the Court struck down a state law favoring qualified Alaska residents over nonresidents for jobs on the Alaska pipeline. The Court said that in order to justify such a biasing of employment opportunities, Alaska had to show that the burdened noncitizens were "the peculiar source of the evil" which the statute sought to alleviate. Hicklin v. Orbeck, 437 U.S. at 525-26, 98 S.Ct. at 2487-2488, citing Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). In addition, the statute had to be "closely tailored" to the problem it addressed. Under this latter requirement, the Court looked to whether there were alternate methods of reaching the state's goal that would be less burdensome on nonresidents. 437 U.S. at 526-27, 98 S.Ct. at 2487-2488.

Until the last few years, no court to our knowledge has ever suggested that the privileges and immunities clause stripped a state's supreme court of the power to limit bar membership to state residents. Recently, however, a number of courts, like the district court in the present case, have analyzed bar residency requirements in terms similar to those set forth in Hicklin. E.g., Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.D.1982); Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980); Gordon v. Commission on Character and Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (N.Y.1979). Viewing the practice of law as indistinguishable from other private callings, these courts have applied the rigorous two-part test discussed in Hicklin to bar residency requirements. See also Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Noll v. Alaska Bar Association, 649 P.2d 241 (Alaska 1982); Sargus v. West Virginia Board of Law Examiners, 294 S.E.2d 440 (W.Va.1982). Not surprisingly, they have found that the requirements failed to satisfy this exacting scrutiny.

We do not believe, however, that the analysis developed by the Supreme Court in cases involving state restrictions upon other occupations is dispositive of the bar membership issue. The Supreme Court has pointed out that the privileges and immunities clause does not prohibit states from ever using state citizenship or residency to distinguish among persons. See, e.g., Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1977). "Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual states." Id. Precisely because the privileges and immunities clause was designed to preserve a federal system, there has to be some point where limitations linked to affiliation with a given state are accorded validity. Were the clause to forbid all distinctions made upon the basis of state citizenship, the concept of statehood would become meaningless. See Baldwin v. Montana Fish and Game Commission, 436 U.S. at 383, 98 S.Ct. at 1860; Varat, State "Citizenship" and Interstate Equality, 48 U.Chi.L.Rev. 487, 520 (1981). The idea of a sovereign state necessarily implies a political community of residents organized under laws to provide certain benefits and services to the community. Varat, supra, at 520. Consequently, it has always been assumed that states may base certain distinctions upon residency. See Baldwin v. Montana Fish and Game Commission, 436 U.S. at 383, 98 S.Ct. at 1860. As the Supreme Court stated in Baldwin,

No one would suggest that the Privileges and Immunities Clause requires a State to open its polls to a person who declines to assert that the State is the only one where he claims a right to vote. The same is true as to qualification for an elective office of the State .... Nor must a State always apply all of its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.

Id. at 383, 98 S.Ct. at 1860 (citations omitted). Cf. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (equal protection not offended by state requiring voters to be bona fide residents); Chimento

Page 102

v. Stark, 353 F.Supp. 1211 (D.N.H.1973) (seven-year residency requirement for governor does not violate right to travel), aff'd mem., 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973).

These principles suggest that, when determining whether a state policy is valid under the privileges and...

To continue reading