Friedman v. Supreme Court of Virginia

• Decision Date: 21 July 1987
• Docket Number: No. 86-3170,86-3170
• Citation: 822 F.2d 423
• Parties: Myrna E. FRIEDMAN, Plaintiff-Appellee, v. SUPREME COURT OF VIRGINIA; David B. Beach, Defendants-Appellants, American Corporate Counsel Association Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 423

822 F.2d 423

56 USLW 2013

Myrna E. FRIEDMAN, Plaintiff-Appellee, v. SUPREME COURT OF VIRGINIA; David B. Beach, Defendants-Appellants, American Corporate Counsel Association Amicus Curiae.

No. 86-3170.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1987.

Decided June 12, 1987.

Rehearing and Rehearing En Banc Denied July 21, 1987.

Gregory E. Lucyk, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, Gail Starling Marshall, Deputy Atty. Gen., James T. Moore, III, Senior Asst. Atty. Gen., on brief), for defendants-appellants.

Cornish F. Hitchcock (Alan B. Morrison, Public Citizen Litigation Group, John J. Mclaughlin on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and YOUNG, United States District Judge for the District of Maryland, sitting by designation.

HARRISON L. WINTER, Chief Judge:

The Rules of the Supreme Court of Virginia permit some Virginia residents, but prevent nonresidents, from gaining admission to the Virginia bar on motion without having to take the bar examination. The district court ruled that this restriction violates the Privileges and Immunities Clause of Article IV, Sec. 2 of the United States Constitution. The defendants appeal and we affirm.

I.

Plaintiff Myrna E. Friedman is a member of the Illinois and the District of Columbia bars who currently resides in the state of Maryland and practices law exclusively in the state of Virginia. The plaintiff was admitted to the Illinois bar in 1977 and to the District of Columbia bar in 1980. In January of 1986, plaintiff became Associate General Counsel of ERC International, Inc., which is headquartered in Vienna, Virginia. When she took her position with ERC International, the plaintiff lived in Arlington, Virginia. Indeed, she had lived in Virginia when she practiced law in the District of Columbia. Before she filed her application for admission to the Virginia bar, however, the plaintiff got married and moved to her husband's home in Cheverly, Maryland. The plaintiff continues to work full-time at the corporate office in Virginia.

The plaintiff filed an application requesting admission to the Virginia bar without having to take the bar examination (admission on motion) in June of 1986. Her application was denied. Under the rules of the Virginia Supreme Court, the plaintiff was ineligible for admission to the Virginia bar on motion solely because she does not reside in Virginia. Subsequently, Ms. Friedman filed suit in the district court against the responsible state officials pursuant to 42 U.S.C. Sec. 1983 to invalidate the provision of the Rules of the Virginia Supreme Court which disqualified her for admission to the state bar on motion. After hearing arguments, the district court entered summary judgment for the plaintiff on the ground that the challenged provision of the Virginia rules violates the Privileges and Immunities Clause of the U.S. Constitution.

II.

Va.Code Sec. 54-67 authorizes the Supreme Court of Virginia to adopt rules which admit experienced lawyers to the Virginia bar without taking the bar examination. The current rule in effect is Rule 1A:1 which provides that an applicant may be admitted on motion if he has been licensed for five years by a jurisdiction which admits Virginia bar members without examination and if he:

(a) Is a proper person to practice law.

(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.

(c) Has become a permanent resident of the Commonwealth.

(d) Intends to practice full-time as a member of the Virginia Bar. ¹

The Virginia Supreme Court interprets the full-time practice requirement of Rule 1A:1(d) to mean that an applicant must show that he intends to open an office in Virginia for the practice of law and to engage regularly in the practice of law in Virginia. In re Brown, 213 Va. 282, 191 S.E.2d 812, 815 n. 3 (1972).

Virginia Rule 1A:1 has been challenged on federal constitutional grounds on at least two prior occasions. A due process challenge to the Virginia Rule was rejected in Brown v. Supreme Court of Virginia, 359 F.Supp. 549 (E.D.Va.), aff'd mem., 414 U.S. 1034, 94 S.Ct. 533, 38 L.Ed.2d 327 (1973). In addition, we have rebuffed a challenge to the full-time practice requirement of Rule 1A:1(d) under the Due Process and Commerce Clauses of the Constitution. Goldfarb v. Supreme Court of Virginia, 766 F.2d 859 (4 Cir.1985). These cases establish that Virginia Rule 1A:1, taken as a whole, and the full-time practice requirement of Rule 1A:1(d) serve a legitimate state interest by ensuring that attorneys admitted to the bar are familiar with the laws of Virginia. See also In re Titus, 213 Va. 289, 191 S.E.2d 798 (1972); In re Brown, supra. No court, however, has addressed the issue presented in this case: Does the residency requirement of Rule 1A:1(c), which limits admission without examination to Virginia residents, violate the Privileges and Immunities Clause of Article IV, Sec. 2 of the Constitution. See Goldfarb v. Supreme Court of Virginia, 766 F.2d at 865 n. 7.

III.

Article IV, Sec. 2 of the Constitution states that the "citizens of each State shall be entitled to all privileges and immunities of Citizens in the several States." The district court, applying the test for prohibited discrimination against the citizens of the several states, found that Virginia Rule 1A:1 violated Article IV, Sec. 2, relying principally on the Supreme Court's recent decision in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985).

In Piper, the Court held that the practice of law is a privilege that is protected by Article IV, Sec. 2 of the Constitution. 470 U.S. at 280-81, 105 S.Ct. at 1277. The practice of law, the Court reasoned, is important to the national economy and is an important part of commercial intercourse between the states. Id. Moreover, out-of-state lawyers play an important role in protecting the wellbeing of a federal union by representing persons who raise unpopular federal claims. Id., 470 U.S. at 281-82, 105 S.Ct. at 1277.

The district court held that Rule 1A:1(c) impermissibly burdens the privilege of practicing law in Virginia by requiring only nonresident attorneys who decide to practice full-time in Virginia to take a bar examination in order to qualify for the practice of law while some resident attorneys are afforded that privilege without having to take the examination. The state maintains that the district court misapplied Piper in reaching this conclusion because there is no fundamental right to practice law without taking a bar examination. See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). We find the state's argument unpersuasive.

The Privileges and Immunities Clause protects more than those rights which are considered fundamental individual rights protected by the Fourteenth Amendment. Piper, supra, 470 U.S. at 281 n. 10, 105 S.Ct. at 1277 n. 10; Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978). In the modern view, Article IV, Sec. 2 attempts to "fuse into one Nation a collective of independent, sovereign States." Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). ² Thus, the Court has found on many occasions that the Clause guarantees to the citizens of the nation that they may do business within a state on the same terms as the citizens of that state. Id. In doing so, the Court has extended the protection of the Privileges and Immunities Clause to a variety of economic interests which are not considered fundamental rights within the sphere of the Fourteenth Amendment. See Hicklin v. Orbeck, supra (invalidating job preferences for state residents); Toomer v. Witsell, supra (invalidating a license fee for shrimp boats operated by nonresidents); Ward v. Maryland, 79 U.S. (12 Wall) 418, 20 L.Ed. 449 (1871) (invalidating special fees to nonresidents for licenses to trade in goods not manufactured in Maryland). ³ The Court has extended the protection of the Privileges and Immunities Clause to those rights which are " 'fundamental' to the promotion of interstate harmony." Piper, supra, 470 U.S. at 279, 105 S.Ct. at 1276; Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 388, 98 S.Ct. 1852, 1862-63, 56 L.Ed.2d 354 (1978). Indeed, in Piper the Court held that the practice of law was protected by Sec. 2 of Article IV although the right to practice law has never been found to be a fundamental right. Thus, the Virginia Rule in this case unquestionably burdens a privilege which is protected by Article IV, Sec. 2.

The Virginia Rule is subject to scrutiny under Article IV, Sec. 2 because the Rule has a disproportionate impact on the practice of law by citizens of the several states who are not residents of Virginia. The effect on nonresidents is obvious because the state has chosen to distinguish between citizens of the state and noncitizens on the face of the enactment; the discriminatory effect of Rule 1A:1 falls entirely on nonresidents of Virginia.

It is true that Rule 1A:1, taken as a whole, burdens many residents of Virginia as well as nonresidents. The Rule allows a person to enter practice on motion only if he has been a member of the bar of another state for five years. Residents of the state who begin their career by practicing in Virginia must take a bar examination; they may never be admitted to the bar on motion. In addition, the Rule also affects new residents who do not meet this five year continuous practice requirement. However, the provision precluding the plaintiff's admission on motion to the Virginia bar, the residency requirement of Rule 1A:1(c), applies on its face exclusively to nonresidents. While other provisions of the Rule--such as the full-time practice requirement or the requirement that an applicant for on-motion admission be a member of the bar of another state--may burden residents of Virginia,...