Scariano v. Justices of Supreme Court of State of Ind., 94-1783

• Decision Date: 26 October 1994
• Docket Number: No. 94-1783,94-1783
• Citation: 38 F.3d 920
• Parties: Anthony G. SCARIANO, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF INDIANA and Members of the State Board of Law Examiners of the State of Indiana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 920

38 F.3d 920

63 USLW 2278

Anthony G. SCARIANO, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF INDIANA and Members of the State Board of Law Examiners of the State of Indiana, Defendants-Appellees.

No. 94-1783.

United States Court of Appeals Seventh Circuit.

Argued Sept. 7, 1994.

Decided Oct. 26, 1994.

John M. Izzo (argued), Scariano, Kula, Ellch & Himes, Chicago Heights, IL, for plaintiff-appellant.

David C. Campbell (argued), Karl L. Mulvaney, Sharon L. Groeger, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, for defendants-appellees.

Before CUMMINGS, BAUER and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

The Supreme Court of Indiana exempts out-of-state practitioners from the bar examination only if they practice "predominately" in Indiana for a period of five years. Anthony G. Scariano, an attorney practicing in Illinois, asserts that this rule violates the Equal Protection Clause of the Fourteenth Amendment and the Commerce Clause of Article I of the Constitution. The district court dismissed Scariano's complaint for failure to state a claim upon which relief could be granted. 852 F.Supp. 708. Chief Judge Barker held that the indirect consequences of Indiana's rule did not rise to the level of an Equal Protection Clause violation or a violation of the Commerce Clause. ¹ We affirm.

I.

Anthony G. Scariano has practiced law in Illinois since 1975. He maintains an office and an active practice in Chicago Heights, Illinois, only a few miles from the Illinois-Indiana border.

In 1990, Scariano applied for admission to the Indiana Bar under that state's foreign license provision, Rule 6 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys (Rules). ² An applicant can gain conditional admission to the Indiana Bar under this provision by submitting an affidavit of intent to engage in practice predominantly in Indiana. Scariano obtained a conditional license on March 4, 1991.

Renewal of this conditional admission depends upon the applicant's ability to demonstrate an active practice, predominantly in Indiana, on a yearly basis. If the applicant succeeds in demonstrating such an active practice for a period of five years, he or she is admitted to the Indiana Bar.

Indiana's Board of Law Examiners interprets and applies Indiana's Rules. That body recently interpreted the "predominant practice requirement" of Rule 6(3). ³ The Board stated that:

The term "in Indiana" means dealing with Indiana law, representing Indiana clients, or handling cases in Indiana courts, i.e., the applicant must look to the substance of what he or she is doing in the practice that relates to Indiana law, courts and clients rather than the physical location of his office.

The term "predominantly" means that the individual's practice in Indiana must exceed, or be equal to, his or her practice in any other jurisdiction.

The application of this requirement prevented Scariano from renewing his conditional license to practice law in Indiana. Because he had a substantial practice in Illinois, it was impossible for him to provide proof of an Indiana practice that exceeded or equaled that of Illinois.

Scariano now attempts to challenge the predominant practice requirement. Although Indiana's Rules provide him the alternative means of gaining admission through bar examination, he undertakes an attack on Indiana's foreign practice provision, Rule 6. He characterizes Indiana's demand that he take the bar examination--when others with out-of-state practices are exempt--as an unreasonable burden. The district court found otherwise. We affirm.

II.

State courts have traditional authority to control bar admission. Leis v. Flynt, 439 U.S. 438, 444 n. 5, 99 S.Ct. 698, 701 n. 5, 58 L.Ed.2d 717 (1979). A state can therefore require observance of high standards, such as proficiency in the law, before admitting an applicant to the bar. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). A state's discretion is not, however, unfettered. State bar admission requirements must have a rational connection with an applicant's legal ability, and they must fulfill other constitutional mandates. Id. See also Poats v. Givan, 651 F.2d 495 (7th Cir.1981) (upholding Indiana's exclusion of applicants who had previously failed the bar examination four times).

The Admission Rules are an exercise of the Indiana Supreme Court's rule-making authority. For the purposes of constitutional inquiry, courts treat the Rules as legislation. See, e.g., Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062 n. 5 (6th Cir.1984), cert. denied, 469 U.S. 917, 105 S.Ct. 295, 83 L.Ed.2d 230 (1984). Analysis of Indiana's Rule 6 must therefore proceed under equal protection and commerce clause standards. Our review of such matters is de novo. Harris Trust & Savings Bank v. E-II Holdings, Inc., 926 F.2d 636, 641 n. 17 (7th Cir.1991).

III.

Scariano first asserts that Rule 6 violates the Equal Protection Clause. The predominant practice requirement, he claims, draws an arbitrary distinction between classes of out-of-state practitioners by focusing on the relative sizes of their out-of-state practices. ⁴ Because a state need not tailor classifications perfectly when fundamental rights are not implicated, we cannot accept Scariano's equal protection challenge.

The first step in equal protection analysis is to determine the standard of scrutiny to which Indiana's Rules are subject. The right to practice law without taking a bar examination is not a fundamental right for equal protection purposes. Lowrie v. Goldenhersh, 716 F.2d 401, 412 (7th Cir.1983). Given the absence of both a fundamental right and a suspect class, rational basis review applies. Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir.1992). Other courts considering equal protection challenges to state bar rules have consistently applied rational basis review. Id. at 1268 (citing cases). Therefore, we will assess the validity of Rule 6 under rationality review.

Under the rational basis test, a law is entitled to a presumption of validity. Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269 (1979). A court will not disturb the law as long as it is rationally related to a legitimate government interest. Schumacher, 965 F.2d at 1269. Therefore, Indiana need make only two showings. First, the State must point to a legitimate state interest. Second, it must demonstrate Rule 6's rational relation to that interest.

States unquestionably have a legitimate interest in insuring the competence of attorneys practicing within their borders. Sestric v. Clark, 765 F.2d 655, 663 (7th Cir.1985); Lowrie, 716 F.2d at 408. Given the information barriers that many clients face in choosing attorneys, a state's desire to regulate the profession is understandable. Sestric, 765 F.2d at 663 (quoting Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810 (1977)). For these reasons, courts treat state efforts to preserve professional integrity with deference. Schumacher, 965 F.2d at 1269.

The district court found that Rule 6 purports to serve two interests. First, Rule 6 is designed to "force familiarity with Indiana law." Second, the rule seeks to maintain "the quality of those persons admitted to practice law." We have previously identified these interests as legitimate; Scariano does not derogate their importance.

Instead, Scariano attacks Rule 6(3)'s claimed rationality. The requirement that an attorney licensed out-of-state practice predominantly in Indiana (that is, more than the attorney practices in other states) is not, he asserts, rational. The comparison between practice in Indiana and practice elsewhere is purportedly not probative of an attorney's familiarity with Indiana law. Instead, the State should require a fixed quantum of experience with Indiana law. By requiring a given measure of experience in Indiana law, Indiana can avoid a disparity in knowledge among out-of-state practitioners gaining admission.

The claimed flaw in the required comparative assessment arises from the possible admission of an attorney only marginally familiar with Indiana law. This might occur, it is claimed, because such an attorney might have a relatively small out-of-state practice. An attorney more experienced in Indiana law, on the other hand, might be denied admission due to a larger out-of-state practice (as apparently happened with Scariano himself). The present rule thus fails to guard against inequalities in admission. Attorneys less well-versed in Indiana's particularities might gain admission while those knowing more about Indiana law might be required to take the bar examination. Although these may indeed be dangers, they do not signal the demise of Rule 6 under rational basis review.

Rationality does not require that a rule be the least restrictive means of achieving a permissible end. Lowrie, 716 F.2d at 401; Schumacher, 965 F.2d at 1273. The general wisdom of Indiana's approach is not a matter for this Court's scrutiny. A given bar admission rule need not be the most effective means of regulating bar admission. Lowrie, 716 F.2d at 401. Scariano's complaints about the required comparative assessment are thus wide of the constitutional mark. ⁵ Nor is it relevant that some unfairness results from the application of the rule. Schumacher, 965 F.2d at 1273. Scariano may in fact be more qualified than others (with smaller out-of-state practices) who have gained admission under the predominant practice requirement. This circumstance, however, is not dispositive. Under rational basis review, some slippage is permissible.

Scariano, however, insists. He suggests that we can find irrationality if we confine our focus to the predominant practice requirement and ignore the rest of Rule 6. We cannot accept Scariano's suggestion. To do so would import least restrictive means analysis...