Noll v. Alaska Bar Ass'n

• Decision Date: 13 August 1982
• Docket Number: No. 5782,5782
• Citation: 649 P.2d 241
• Parties: Jonathan B. NOLL, Appellant, v. ALASKA BAR ASSOCIATION, Appellee.
• Court: Alaska Supreme Court

Page 241

649 P.2d 241

Jonathan B. NOLL, Appellant, v. ALASKA BAR ASSOCIATION, Appellee.

No. 5782.

Supreme Court of Alaska.

Aug. 13, 1982.

Mark R. Moderow, David J. Walsh, Moderow, Walsh, Sharick & Tucker, Anchorage, for appellant.

Jonathan Noll, in pro. per.

William B. Rozell, Faulkner, Banfield, Doogan & Holmes, Juneau, for appellee.

Before BURKE, C. J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

OPINION

MATTHEWS, Justice.

This appeal involves the constitutionality of Alaska Bar Rule 5(1)(a) which requires that an applicant for admission to the state bar be domiciled in Alaska. ¹ Jonathan Noll, who resides in Seattle and is a member of the bar in both Washington and New Jersey, applied for admission to the Alaska Bar Association (ABA) after passing the 1980 summer bar examination for attorney applicants. Although acknowledging that Noll was otherwise qualified, the Board of Governors of the ABA denied him admission solely because he failed to meet the domicile requirement imposed by Bar Rule 5(1)(a). Noll has appealed that decision contending that the domicile requirement violates the privileges and immunities clause of Article IV, Section 2 of the United States Constitution. ² We agree.

The privileges and immunities clause provides that "(t)he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States." United States Const., art. IV, § 2. In Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980) we held that this clause prohibits a requirement that Alaska bar examination applicants establish domicile ³ in the state at least thirty days before the start of the exam. In so holding we found that the practice of law by qualified persons is a "fundamental right" protected by the privileges and immunities clause. Id. at 642-43. Because the thirty-day residency requirement imposed a discriminatory burden on the exercise of that right by qualified nonresidents, it triggered scrutiny under the clause. It failed to survive such scrutiny and, thus, we concluded that the requirement was unconstitutional. Id. at 646; accord Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Gordon v. Committee on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979).

That Rule 5(1)(a) discriminates against nonresidents is not disputed. It prevents otherwise qualified applicants from becoming members of the Alaska bar, and hence from practicing law in this state, ⁴ solely on the basis of domicile at the time of registration for admission. Once admitted, a member of the bar is not required to remain domiciled in Alaska. ⁵ While the rule does not impose a durational residency requirement, ⁶ it nonetheless denies a nonresident attorney the right to practice law on a multistate basis and interferes with the practice of law by attorneys employed by multistate corporations. ⁷ Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155, 157 (D.S.D.1982); see Gordon v. Committee on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 644, 397 N.E.2d 1309, 1312-13 (1979). Consequently, Rule 5(1)(a) burdens the "fundamental right" of qualified persons to practice law, ⁸ and is therefore subject to scrutiny under the privileges and immunities clause.

Article IV, section 2 prohibits discrimination against nonresidents "where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460, 1471 (1948); quoted with approval in Hicklin v. Orbeck, 437 U.S. 518, 525, 98 S.Ct. 2482, 2487, 57 L.Ed.2d 397, 404 (1978). No "substantial reason" will be found absent some showing that nonresidents are "a peculiar source of the evil" which the state's action is meant to remedy. Id. at 526-27, 98 S.Ct. at 2487, 57 L.Ed.2d at 405. In addition, the discrimination worked upon nonresidents must "bear a substantial relationship to the particular 'evil' they are said to present." Id. at 527, 98 S.Ct. at 2488, 57 L.Ed.2d at 405. Only if the challenged discriminatory action surmounts both of these hurdles will it survive privileges and immunities clause scrutiny. ⁹ See, e.g., Gordon v. Committee on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 645, 397 N.E.2d 1309, 1313 (1979).

Turning to Bar Rule 5(1)(a), the ABA argues that there are a number of reasons for requiring Alaska domicile in order to gain admission to the bar. First, it asserts that "Alaska has a legitimate state interest in imposing requirements for admission designed to ensure the competency of the state bar, to improve its knowledge of law and procedure and its familiarity with local practice, local issues and communities in Alaska.'' According to the ABA, this interest is served by Rule 5(1)(a) because it "requires an attorney, even if he is admitted in another state, to focus on practice in Alaska after his admission."

That the state has a strong interest in assuring that members of its bar are competent is beyond peradventure. See In re Griffiths, 413 U.S. 717, 722-23, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910, 916 (1976); Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801 (1957). But the ABA has not demonstrated that this interest is threatened by permitting nonresident attorneys the right to practice law in this state. Requiring bar applicants such as Noll to take and pass the Alaska bar examination already provides the state a means of determining an applicant's knowledge of state substantive and procedural law. Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155, 159 (D.S.D.1982). Nor has the ABA shown that there is a relationship between familiarity with "local practice" or "local issues" and legal competence. As noted by one court, "(n)either legal competence nor ethical fitness depends upon cultural provincialism." Keenan v. Board of Law Examiners, 317 F.Supp. 1350, 1359 (E.D.N.C.1970). In short, there has been no showing "that nonresidents pose a 'peculiar source of evil' to the ideal of maintaining a bar of qualified attorneys." ¹⁰ Strauss v. Alabama State Bar, 520 F.Supp. 173, 178 (N.D.Ala.1981).

Moreover, the domicile requirement of Rule 5(1)(a) is not substantially related to achieving the legitimate objective of a competent bar. Once admitted, an attorney may immediately move out of Alaska yet retain active membership status. ¹¹ "Such an attorney may never learn local customs or attitudes since this knowledge is gleaned, most often, only after the attorney begins an in-state practice." Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155, 160 (D.S.D.1982). In addition, a less restrictive means of ensuring that attorneys, resident and nonresident alike, are well-versed in local law would be to require periodic testing on issues of state law as a condition to continued practice in Alaska. ¹² Thus, even were we to accept the ABA's contention that admitting nonresident attorneys would pose a threat to the state bar's legal competence, the discrimination occasioned by Rule 5(1)(a) does not "bear a substantial relationship to the 'evil' they are said to present." Hicklin v. Orbeck, 437 U.S. 518, 527, 98 S.Ct. 2482, 2488, 57 L.Ed.2d 397, 405 (1978).

Next, the ABA argues that Alaska residency is necessary to facilitate service of process and communication with other attorneys, and to prevent scheduling and other administrative problems for state courts. We are unpersuaded, however, that these concerns constitute "substantial reasons" for completely excluding nonresidents from admission to the bar. ¹³ Cf. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 560, 42 L.Ed.2d 532, 544-45 (1975). Facilitating service of process could just as easily be accomplished by requiring nonresident attorneys to appoint an in-state agent for such service, ¹⁴ or by resorting to the mails. ¹⁵ The existence of telephones already provides an effective means to communicate with other counsel. In addition, we fail to see how the asserted problem of communication between resident and nonresident counsel differs materially from that confronting a Fairbanks attorney trying a case in Juneau. For the same reason, the ABA's concern that admitting nonresident attorneys would create scheduling and other administrative problems for state courts is likewise unconvincing. In sum, the ABA has failed to demonstrate that nonresident attorneys constitute a "peculiar source" of these evils, see Stalland v. South Dakota Board of Law Examiners, 530 F.Supp. 155, 159 (D.S.D.1982), or that these potential problems cannot be dealt with by less restrictive means.

Finally, the ABA contends that the domicile requirement of Rule 5(1)(a) assures that members of the state bar are readily amenable to discipline and fee arbitration and are available to serve on the committees that administer these procedures. While we agree that the state has a valid interest in regulating the conduct of the attorneys it admits to practice, we are unable to perceive how nonresidents threaten that interest such that blanket discrimination against them is required. As one commentator has noted:

Any correlation between ethical behavior and in-state residence ... is marginal at best. Many nonresidents can be expected to practice honestly in the state, and some resident attorneys can be expected to do so reprehensibly, because the individual lawyer's personal code of ethics and moral fortitude influence behavior much more than his or her place of residence.

Simson, Discrimination Against Nonresidents and the Privileges and Immunities Clause of Article IV, 128 U.Pa.L.Rev. 379, 391 (1979); See Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064, 1072 (D.N.H.1982) ("(T)he good reputation of the attorney and the bar generally is a function of where an individual's heart is, not where her house is"). Moreover, the state has available to it numerous less...