Matter of Frazier, Misc. No. 873.

• Decision Date: 13 September 1984
• Docket Number: Misc. No. 873.
• Citation: 594 F. Supp. 1173
• Parties: In the Matter of David C. FRAZIER.
• Court: U.S. District Court — Eastern District of Louisiana

594 F. Supp. 1173

In the Matter of David C. FRAZIER.

Misc. No. 873.

United States District Court, E.D. Louisiana, New Orleans Division.

September 13, 1984.

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Gary L. Roberts, Pascagoula, Miss., for plaintiff.

Cicero C. Sessions and Sally Shushan, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, La., for defendant.

OPINION

EDWIN F. HUNTER, Jr., Senior District Judge.

In this suit, David Frazier challenges the constitutionality of the Local Rules for the Eastern District of Louisiana that pertain to the admission of nonresident attorneys to the Court's Bar. Frazier commenced this action by filing a petition for a writ of prohibition and other relief with the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit remanded the cause to the District Court for the Eastern District of Louisiana for appropriate proceedings and entry of an appealable judgment. The appellate court noted that the petitions for extraordinary relief were carried with the cause on remand. After all of the active and senior judges of the Eastern District recused themselves, the matter was assigned to this judge, a senior judge of the Western District of Louisiana. A preliminary motion for summary judgment and a motion to dismiss for want of jurisdiction were taken under advisement for resolution after a trial on the merits and the action was tried to the Court, sitting without a jury, on August 10, 1984. This narrative opinion will serve as the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a).

Background

This action arises out of a simple set of facts, none of which are disputed by the parties. David Frazier resides in Pascagoula, Mississippi and practices law with a firm located in that same city. Pascagoula is about 110 miles from New Orleans, where the Eastern District sits. Frazier is licensed to practice law in both Mississippi and Louisiana. On or about April 27, 1982, Frazier applied for general admission to the bar of the Eastern District, attaching all of the materials required by Local Rule 21.3. The matter was submitted to the Court sitting en banc and the Court ruled that Frazier was ineligible for general admission to the Eastern District Bar. The Clerk notified Frazier of this decision in a letter dated September 30, 1982.

In denying Frazier's application, the Court found that Frazier could not satisfy the eligibility requirements of Local Rule 21.2. This rule provides as follows:

21.2 Eligibility

Any member in good standing of the bar of the Supreme Court of Louisiana who resides or maintains an office for the practice of law in the State of Louisiana is eligible for admission to the bar of this court.

(emphasis added). As a nonresident member of the Louisiana state bar, Frazier can qualify for admission to the Eastern District bar only by moving to Louisiana or by opening a law office in Louisiana. In substantial effect, the Rule requires nonresident members of the Louisiana bar to open a law office in Louisiana in order to qualify for general admission to the Eastern District bar. Continuous and uninterrupted Louisiana residence or maintenance of a Louisiana law office is now a requirement for continuing eligibility in the Eastern District bar. See Eastern District of Louisiana Local Rule 21.3.1.

If a nonresident attorney cannot qualify for general admission to the Eastern District bar, then he may practice before the Court only by way of an application for pro hac vice admission. The procedure for pro hac vice admission is set forth in Local Rule 21.5, which provides as follows:

21.5. Visiting Attorneys

Any member in good standing of the bar of any court of the United States or of the highest court of any state, who is ineligible to become a member of the bar of this court, may, upon written motion of counsel of record who is a member of the bar of this court, by ex parte order, be permitted to appear and participate as co-counsel in a particular case.

The motion must have attached to it a certificate of the presiding judge or clerk of the highest Court of the State, or Court of the United States, where he has been so admitted to practice, showing that the applicant attorney has been so admitted in such Court, and that he is in good standing therein.

The applicant attorney shall state under oath whether any disciplinary proceedings or criminal charges have been instituted against him, and if so, full information about the proceedings or charges and the results thereof shall be disclosed.

An attorney thus permitted to appear may participate in a particular action or proceeding in all respects, except that all documents requiring signature of counsel for a party may not be signed solely by such attorney, but must bear the signature also of local counsel with whom he is associated.

Local counsel shall be responsible to the Court at all stages of the proceedings.

Designation of the visiting attorney as "Trial Attorney", pursuant to Rule 2.3 herein shall not relieve the local counsel of the responsibilities imposed by this Rule.

The Court finds as a fact that David Frazier would not have been denied pro hac vice admission had he complied with Rule 21.5.

Frazier challenges the eligibility requirements of Rule 21.2 as violative of the Commerce Clause, the Full Faith and Credit Clause, the guarantee of equal protection of the laws secured by the Due Process Clause of the Fifth Amendment, and the Privileges and Immunities Clause. Frazier also contends that limiting him to admission on a pro hac vice basis violates the protections of the First Amendment. The Court will consider each of these challenges in turn after addressing the defendants' objection to jurisdiction.

Jurisdiction

Counsel for the district judges concede that jurisdiction exists over this type of subject matter under 28 U.S.C. § 1651. Counsel urges, however, that the Court nonetheless lacks jurisdiction on the basis that Frazier has failed to raise a substantial federal question. A federal claim is jurisdictionally insubstantial only if it is obviously without merit or it is completely foreclosed by prior decisions of the Supreme Court. See Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974). The test for dismissal on this basis is a rigorous one and ultimate dismissal on the merits is no test of jurisdiction. See generally 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3564 (1975). Here, the Court does not find that Frazier's claims are obviously without merit or that they are completely foreclosed by prior Supreme Court decisions. Accordingly, the Court concludes that it has jurisdiction over the subject matter and will proceed to the merits of Frazier's claims.

Commerce Clause

Frazier contends that Rule 21.2 violates the Commerce Clause because it has "the chilling effect of discriminating against and thereby discouraging out-of-state attorneys from the general practice of law before the Bar of the Eastern District of Louisiana." Trial Brief for the Plaintiff, at 12. Frazier relies upon several cases recognizing constitutional restrictions on the power of states to prefer residents over nonresidents, such as Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (Alaska could not require preferential hiring of residents over nonresidents in oil or gas exploration and development agreements); Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064 (D.N.H. 1982), aff'd by an equally divided court, 723 F.2d 110 (1st Cir.1983) (en banc), prob. juris. noted, ___ U.S. ___, 104 S.Ct. 2149, 80 L.Ed.2d 535 (1984) (New Hampshire could not require residency for admission to the state bar); Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.D.1982) (similar); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970) (the court struck down a twelve-month residency requirement for eligibility to take the North Carolina bar); In re Jadd, 391 Mass. 227, 461 N.E.2d 760 (1984). It must be noted at the outset that all of these cases are decided under either the Privileges and Immunities Clause or the Equal Protection Clause. The Hicklin Court and two circuit judges in Piper do intimate, however, that the Commerce Clause also limits a state's ability to prefer residents over nonresidents. See Hicklin, 437 U.S. at 531-34, 98 S.Ct. at 2490-91; Piper, 723 F.2d at 113 (Bownes and Coffin, JJ.); see also Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70 (5th Cir.1980) (a parish ordinance that required nonresident workers to obtain an identification card at a cost of ten dollars impermissibly burdened interstate commerce). Yet, even assuming that the Commerce Clause in its dormant state prohibits states from restricting admission of nonresident attorneys, it is far from clear that this particular clause places a similar restriction on the Congressionally-delegated rule-making authority of the lower federal courts.

The rule-making authority of the lower federal courts is limited only to the extent that Congress would be limited if that body itself exercised the rule-making power. Congress possesses the power to establish courts inferior to the Supreme Court and to make all laws necessary and proper for executing that power. U.S. Const., art. I, § 8, cl. 9; U.S. Const. art. I, § 8, cl. 18. As part of the power to make necessary regulations in establishing a lower court system, Congress can prescribe rules for practice and procedure in those courts. Congress has not exercised this power directly, however, but has instead delegated the rule-making authority to the courts themselves. See 28 U.S.C. § 2071 (general delegation of rule-making authority); 28 U.S.C. § 1654 (specific delegation of authority to prescribe rules governing the appearance of counsel); see also F.R.C.P. 83 (authority for district courts to adopt local rules).¹ So...