Piper v. Supreme Court of New Hampshire, 82-1548

• Decision Date: 05 December 1983
• Docket Number: No. 82-1548,82-1548
• Citation: 723 F.2d 110
• Parties: Kathryn A. PIPER, Plaintiff, Appellee, v. SUPREME COURT OF NEW HAMPSHIRE, Defendant, Appellant. . Re
• Court: U.S. Court of Appeals — First Circuit

Page 110

723 F.2d 110

Kathryn A. PIPER, Plaintiff, Appellee, v. SUPREME COURT OF NEW HAMPSHIRE, Defendant, Appellant.

No. 82-1548.

United States Court of Appeals, First Circuit.

Resubmitted June 8, 1983.

Decided Dec. 5, 1983.

Martin L. Gross, Sulloway, Hollis & Soden, Martha V. Gordon, Devine, Millimet, Stahl & Branch and Gregory H. Smith, Atty. Gen., Concord, N.H., on supplemental brief for defendant, appellant.

Robert A. Backus and Backus, Shea & Meyer, Manchester, N.H., on supplemental brief for plaintiff, appellee.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

In this challenge to the constitutionality of Rule 42 of the Supreme Court of New Hampshire, the district court found that the rule violated the privileges and immunities clause. 539 F.Supp. 1064 (D.N.H.1982). A divided panel of this court reversed. Upon granting the petition for rehearing en banc, this court vacated the panel's judgment and withdrew the panel opinion. Upon en banc reconsideration this court is now divided 2-2. Therefore, the decision of the district court is affirmed by an equally divided vote.

We reproduce below the two en banc opinions.

BOWNES and COFFIN, Circuit Judges.

The issue in this en banc appeal is whether Rule 42 of the New Hampshire Supreme Court, requiring that applicants to the state bar establish New Hampshire residency, violates the privileges and immunities clause in article IV, Sec. 2 of the United States Constitution.

The facts may be briefly summarized. Plaintiff-appellee Kathryn Piper lives in Lower Waterford, Vermont, within 400 yards of the New Hampshire border. In 1979, she applied for permission to sit for the February 1980 New Hampshire bar examination, and signed a statement of intent to establish residency in New Hampshire as required by Rule 42. The rule provides that a bar applicant must "either [be] a resident of the State of New Hampshire or [have] filed a statement of intention to reside in the State of New Hampshire." This is interpreted to mean that bar applicants must establish bona fide residency at the time the oath of admission is administered. ¹ See Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064, 1066 (D.N.H.1982). Piper received permission to take the examination, did so, and was informed on April 18, 1980, that she had passed it and would become eligible for admission to the state bar upon establishing New Hampshire residency. Piper then requested a dispensation from the residency requirement on grounds of changed personal circumstances involving the recent birth of a child. The New Hampshire Supreme Court denied her petition 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 the residency requirement violated various provisions of the United States Constitution including the privileges and immunities clause of article IV, Sec. 2. The district court held that Rule 42 violated the privileges and immunities clause. See Piper, supra. After the first hearing of this appeal, a panel of the court, with one judge dissenting, reversed the district court and upheld the challenged rule. Piper v. Supreme Court of New Hampshire, 723 F.2d 98 (1st Cir.1983). Having reheard the appeal en banc, the court stands evenly divided, and the district court's judgment is reinstated.

The United States Constitution, art. IV, Sec. 2, provides: "The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States." The purpose of the clause is not to create an open-ended category of privileges and immunities incident to national citizenship, but rather to guarantee that each state shall afford the same privileges and immunities to noncitizens or nonresidents as it does to its own citizens or residents. ² "The section, in effect, prevents a State from discriminating against citizens of other States in favor of its own." Hague v. Committee for Industrial Organization, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939), cited in Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 381-82, 98 S.Ct. 1852, 1859-60, 56 L.Ed.2d 354 (1978); see also id. at 380-81, 98 S.Ct. at 1858-59, citing Paul v. Virginia, 75 U.S. 168, 180, 8 Wall 168, 180, 19 L.Ed. 357 (1869).

In interpreting the privileges and immunities clause, the Supreme Court has not yet defined the precise contours of the interests protected by the clause. In Baldwin, however, the Court noted that the clause "has been interpreted to prevent a State from imposing unreasonable burdens on citizens of other States in their pursuit of common callings within the State; in the ownership and disposition of privately held property within the State; and in access to the courts of the State." 436 U.S. at 383, 98 S.Ct. at 1860 (citations omitted). The Court proceeded to explain that the clause applies "to basic and essential activities, interference with which would frustrate the purpose of the formation of the Union." Id. at 387, 98 S.Ct. at 1862. Among those protected interests, the Court clearly counted the individual's "right to pursue a livelihood in a State other than his own, a right that is protected by the Privileges and Immunities Clause. Toomer v. Witsell, 334 U.S. 385 [68 S.Ct. 1156, 92 L.Ed. 1460] (1948)." 436 U.S. at 386, 98 S.Ct. at 1861.

In Baldwin, the Court rejected a challenge to a state scheme which imposed more expensive and burdensome conditions for obtaining elk hunting licenses on nonresidents than on residents; elk hunting was characterized as "a recreation and a sport" rather than "a means to the nonresident's livelihood." Id. at 388, 98 S.Ct. at 1862. When dealing with residency-based discrimination that affects economic or occupational opportunities, though, the court has consistently struck down state barriers. In Toomer, the Court invalidated a state statute which required nonresident shrimpers to pay a licensing fee one hundred times higher than that for residents. The articulated function of the privileges and immunities clause was "to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.... [O]ne of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State." 334 U.S. at 395-96, 68 S.Ct. at 1161-62. Most recently, in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), the Court held that a state statute requiring preferential hiring for state residents in the oil and gas industry constituted "discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State," and thus violated the privileges and immunities clause. The Court reaffirmed that "a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State." Id. at 524-25, 98 S.Ct. at 2486-87.

The Hicklin Court also perceived a "mutually reinforcing relationship" between the privileges and immunities clause and the commerce clause, stemming from their "common origin in the Fourth Article of the Articles of Confederation and their shared vision of federalism," id. at 531-32, 98 S.Ct. at 2490-91, and cited several commerce clause decisions to support the privileges and immunities reasoning. ³ The two clauses are indeed similar, for both limit a state's ability to afford its own residents preferential treatment at the expense of nonresidents. Analysis under either clause may lead to the same result in a given case. Nevertheless, the application and effect of the clauses are distinct. The commerce clause serves to prevent the states from interfering with regulation of interstate commerce by the federal legislature, while the privileges and immunities clause guarantees individual rights: the distinction between the prerogatives of Congress and the rights of private citizens is important. The application of the commerce clause depends on the expressed intent of Congress, which could conceivably endorse various state statutes having distorting effects on interstate commerce. By contrast, nothing within the power of Congress can abrogate the guarantees of the privileges and immunities clause. Analysis under that clause must be carried out independently.

Chief Judge Campbell invokes National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and its progeny apparently to suggest that, like congressional power to legislate under the commerce clause, the reach of the privileges and immunities clause should be limited in areas closely tied to the state's ability to function as a sovereign government. [See Piper, 723 F.2d at 98-102.] But, although the commerce clause and the privileges and immunities clause have the common constitutional purpose of promoting national unity, it is misleading to suggest that analysis under the two clauses is identical. Whether Congress could, under its commerce power, enact a statute that required states to admit nonresidents who otherwise met a state's bar qualifications is not the question before this court.

National League of Cities found in the tenth amendment a prohibition on congressional interference under the commerce clause with matters deemed essential to the sovereignty of a state. But the tenth amendment reserves to the states only those powers not prohibited to the states by other provisions of the Constitution. Article IV, section 2 is such a provision, removing from the states the power to deny noncitizens or nonresidents those privileges and immunities that it extends to its own citizens and residents.

Under a privileges and immunities analysis, a state is not absolutely prohibited from establishing residency qualifications;...