765 F.2d 655 (7th Cir. 1985), 84-2298, Sestric v. Clark

Docket Nº:84-2298.
Citation:765 F.2d 655
Party Name:Anthony J. SESTRIC, Plaintiff-Appellant, v. William G. CLARK, et al., Defendants-Appellees.
Case Date:June 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 655

765 F.2d 655 (7th Cir. 1985)

Anthony J. SESTRIC, Plaintiff-Appellant,

v.

William G. CLARK, et al., Defendants-Appellees.

No. 84-2298.

United States Court of Appeals, Seventh Circuit

June 18, 1985

Argued Feb. 28, 1985.

As Amended on Denial of Rehearing and Rehearing En Banc Aug. 1, 1985.

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Anthony J. Sestric, St. Louis, Mo., for plaintiff-appellant.

Patricia Rosen, Ill. Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The appellant, Anthony Sestric, is a member of the Missouri bar living and practicing law in St. Louis. He brought this suit against the responsible Illinois officials to invalidate, primarily on federal constitutional grounds, the requirement that a nonresident who wants to practice law in Illinois pass the Illinois bar exam. If Sestric became a resident of Illinois, he could be admitted to the Illinois bar on motion, without taking the bar exam. St. Louis is just across the Mississippi River from Illinois, and Sestric would like to practice law in Illinois without moving to Illinois and without taking the Illinois bar exam. Although his complaint was dismissed on the defendants' motion for summary judgment, he does not argue that the factual record is insufficient to resolve the issues he has raised on appeal.

Sestric bases his case on the privileges and immunities clause of Article IV of the Constitution ("The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"), and also on the better-known commerce and equal protection clauses. (His additional claim, that the refusal to admit him violated Illinois law, clearly has no merit, for the reasons stated by the district judge.) If the privileges and immunities clause could be viewed as a general guaranty against discrimination by states against nonresidents, then it and the commerce clause--viewed not as a grant of power to Congress but as a prohibition against state action inconsistent with free trade among the states (the "negative" or "dormant" commerce clause)--would occupy the same ground, and we would not have to discuss both clauses. As a matter of fact the framers of the Constitution may have intended the privileges and immunities

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clause to play the role that has come to be associated more with the "negative" commerce clause. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 447-48 (1982). But almost 200 years of judicial interpretation have opened up a wedge between the two clauses. For example, the privileges and immunities clause has been held not to protect corporations. See, e.g., W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 492-93 (7th Cir.1984). A more pertinent example is that it has been held not to protect the full range of activities in which nonresidents might engage. See, e.g., Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 388, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354 (1978) (elk hunting by nonresidents of Montana). So we shall have to address the plaintiff's commerce clause contentions separately (though briefly), and also his equal protection contentions; but we shall begin with privileges and immunities.

Illinois does not require that members of its bar be residents of the state--a requirement that the U.S. Supreme Court held, after argument in this case, violates the privileges and immunities clause. See Supreme Court of New Hampshire v. Piper, --- U.S. ----, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985). A nonresident can get admitted to the Illinois bar by passing the Illinois bar exam and satisfying the usual ethical requirements. Nonresidents more than six years out of law school, like the plaintiff, used to be denied this right; but that exclusion, the focus of the plaintiff's challenge in the district court, was rescinded while the appeal in this case was pending. See Rule 703 of the Illinois Supreme Court (Sept. 14, 1984). Though it was not till his reply brief in this court that Sestric redirected his attack to the requirement that he sit for the bar exam, the rule change that ended the exclusion of nonresident lawyers who were more than six years out of law school came after he filed his brief; so he is not subject to criticism for having changed his theory when he did. We could remand the case to the district court to consider the new theory before we do, but since it raises only pure issues of law and the district judge who decided the case has died, the delays involved in a remand would not be justified.

If Sestric moved to Illinois he would be excused from having to take the Illinois bar exam, provided he had practiced continuously for five of the last seven years in a jurisdiction to whose bar he had been admitted, Ill.S.Ct.R. 705, as Sestric has (we shall call this the "continuous practice" requirement). Therefore he is treated less favorably than a class of (new) Illinois residents. This difference is the basis of Sestric's present claim under the privileges and immunities clause. Whether such a difference violates the clause, or any other provision of the Constitution, is one of first impression at the federal appellate level, although the Massachusetts Supreme Court has held a similar regulation to be in violation of the clause. In re Jadd, 391 Mass. 227, 236-37, 461 N.E.2d 760, 765-66 (1984). Several decisions, one by this court, uphold the constitutionality of continuous-practice requirements. See Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir.1983); Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062-64 (6th Cir.1984); Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y.1982), aff'd on the district court's opinion, 702 F.2d 46 (2d Cir.1983) (per curiam). And Hawkins v. Moss, 503 F.2d 1171 (4th Cir.1974), upholds the denial of the continuous-practice exemption to a lawyer whose state of licensing does not reciprocate the exemption. Although none of these cases is directly in point, since the plaintiffs were residents complaining about a requirement that Sestric (a nonresident) satisfies, all contain dicta which cast doubt on the validity of Sestric's claim. For example, we said in Lowrie that "there is no residency requirement preventing Lowrie from taking the Illinois bar examination in the first instance. The years of practice and residency requirement at issue in this case prevent Lowrie from being admitted to the Illinois bar without examination. It is primarily for this reason, as well as on the ground that we are unable to, as amicus

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curiae does, ascribe to the Illinois Supreme Court a motive of discouraging out-of-state lawyers from migrating to Illinois, that we find the [amicus's] Privileges and Immunities Clause contentions devoid of merit." 716 F.2d at 414 (emphasis in original). See also 730 F.2d at 1063, 1065; 503 F.2d at 1176-80; 552 F.Supp. at 587-88. Lowrie also suggests, it is true, that the practice of law is not one of the privileges protected by the privileges and immunities clause, see 716 F.2d at 414--a proposition that, after Piper, can no longer be maintained. See 105 S.Ct. at 1277. But as the passage quoted above makes clear, this was not our primary ground for rejecting Lowrie's privileges and immunities claim.

In any event, Piper, though it is, as we shall see, distinguishable from this case, requires us to take a fresh look at the issue, and not just rest on dicta in lower-court decisions, our own or others'. The Supreme Court stated in Piper that discrimination against a nonresident who wants to practice law violates the privileges and immunities clause unless "(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." Id. at 1279 (citation and footnote omitted). This is a tough test to pass, but before applying it to the "discrimination" of which Sestric complains we must ask whether the Supreme Court intended the test to apply to such a claim. Sestric's claim is different from Piper's. It is not clear that Sestric has been deprived of a privilege or an immunity within the meaning of the clause or that he is the victim of a discrimination in favor of residents and against nonresidents--or indeed that there is any discrimination between any two groups. Thus he may not even have a prima facie claim under the privileges and immunities clause, or he may have a claim more easily rebutted than Piper's.

In the usual privileges and immunities case a state conditions a substantial opportunity or "privilege"--such as, in Piper itself, the practice of law--on the status of being a resident...

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