Schoenefeld v. Schneiderman

• Decision Date: 22 April 2016
• Docket Number: Docket No. 11–4283–cv.
• Citation: 821 F.3d 273
• Parties: Ekaterina SCHOENEFELD, Plaintiff–Appellee, v. Eric T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York; All Justices of New York Supreme Court, Appellate Division, Third Judicial Department; Robert D. Mayberger, in his official capacity as Clerk of New York Supreme Court, Appellate Division, Third Judicial Department; John G. Rusk, Chairman of the Committee on Professional Standards (“COPS”), Defendants–Appellants, State of New York; New York Supreme Court, Appellate Division, Third Judicial Department; Committee on Professional Standards of New York Supreme Court, Appellate Division, Third Judicial Department and Its Members, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

821 F.3d 273

Ekaterina SCHOENEFELD, Plaintiff–Appellee

v.Eric T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York; All Justices of New York Supreme Court, Appellate Division, Third Judicial Department; Robert D. Mayberger, in his official capacity as Clerk of New York Supreme Court, Appellate Division, Third Judicial Department; John G. Rusk, Chairman of the Committee on Professional Standards (“COPS”), Defendants–Appellants

State of New York; New York Supreme Court, Appellate Division, Third Judicial Department; Committee on Professional Standards of New York Supreme Court, Appellate Division, Third Judicial Department and Its Members, Defendants.

Docket No. 11–4283–cv.

United States Court of Appeals, Second Circuit.

Argued: June 4, 2015.

Decided: April 22, 2016.

Ekaterina Schoenefeld, Schoenefeld Law Firm LLC, Princeton, NJ, pro se.

Laura Etlinger, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants–Appellants.

David B. Rubin, Esq., Metuchen, NJ, for Amicus Curiae The New Jersey State Bar Association, in support of Plaintiff–Appellee.

Leah M. Nicholls, Brian Wolfman, Institute for Public Representation, Washington, D.C., for Amici Curiae New York–Licensed Nonresident Attorneys, in support of Plaintiff–Appellee.

Before: RAGGI, HALL, CARNEY, Circuit Judges.

Judge HALL

dissents in a separate opinion.

REENA RAGGI

, Circuit Judge:

On this appeal, we must decide whether New York violates the Constitution's Privileges and Immunities Clause, see U.S. Const. art. IV, § 2, by requiring nonresident members of its bar to maintain a physical “office for the transaction of law business” within the state, when resident attorneys are not required to maintain offices distinct from their homes, N.Y. Judiciary Law § 470

. Having now received the New York Court of Appeals' response to our certified question as to the “minimum requirements necessary to satisfy” § 470's office mandate, see

Schoenefeld v. New York, 748 F.3d 464 (2d Cir.2014) ; Schoenefeld v. State, 25 N.Y.3d 22, 6 N.Y.S.3d 221, 29 N.E.3d 230 (2015) (holding § 470 to require physical office), we conclude that § 470 does not violate the Privileges and Immunities Clause because it was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law. To the contrary, the statute was enacted to ensure that nonresident members of the New York bar could practice in the state by providing a means, i.e., a New York office, for them to establish a physical presence in the state on a par with that of resident attorneys, thereby eliminating a service-of-process concern. We identify no protectionist intent in that action. Indeed, it is Schoenefeld who, in seeking to practice law in New York without a physical presence in the state, is looking to be treated differently from, not the same as, New York resident attorneys. Such differential treatment is not required by the Privileges and Immunities Clause. Accordingly, we reverse the judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge ) declaring § 470's office requirement unconstitutional, see

Schoenefeld v. New York, 907 F.Supp.2d 252 (N.D.N.Y.2011), and we remand the case with instructions to enter judgment in favor of defendants on Schoenefeld's Privileges and Immunities claim.¹

I. Background

Because the facts and procedural history underlying this appeal are set forth in our prior panel opinion with which we assume familiarity, we reiterate them here only insofar as necessary to explain our decision to reverse and remand.

A. The Privileges and Immunities Clause Challenge to N.Y. Judiciary Law § 470

Plaintiff Ekaterina Schoenefeld, a citizen and resident of New Jersey, is licensed to practice law in New Jersey, New York, and California. She maintains an office in New Jersey, but not in New York. She asserts that she has declined occasional requests to represent clients in New York state courts to avoid violating N.Y. Judiciary Law § 470

, which states as follows:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

N.Y. Judiciary Law § 470 (McKinney 2016)

(emphasis added). Schoenefeld seeks a judicial declaration that the office requirement imposed by § 470 on nonresident members of the New York bar violates the Constitution's Privileges and Immunities Clause by infringing on nonresidents' right to practice law in New York. The district court agreed and, on the parties' cross-motions for summary judgment, declared § 470

unconstitutional. See

Schoenefeld v. New York, 907 F.Supp.2d at 262–66. This timely appeal followed.

B. This Court's Certification to the New York Court of Appeals

In appealing the district court's ruling, New York State's Attorney General, on behalf of all defendants, initially argued that this case presented no Privileges and Immunities Clause concern because § 470

's office requirement could be construed to demand only “an address for accepting personal service,” which could be satisfied by a designated agent. Schoenefeld v. New York, 748 F.3d at 467. Alternatively, the Attorney General argued that, even if § 470 did treat nonresident attorneys differently from resident attorneys, it did not violate the Privileges and Immunities Clause because the burden imposed on nonresidents was “incidental” and substantially related to New York's sufficient state interest in the service of legal papers. Id.

Seeking to avoid a possibly unnecessary constitutional question, see Arizonans for Official English v. Arizona, 520 U.S. 43, 78–79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)

(explaining that, in confronting constitutional challenge to statute, court must first determine if any reasonable construction “will contain the statute within constitutional bounds,” and emphasizing that “[w]arnings against premature adjudication of constitutional questions bear heightened attention” where federal court is asked to invalidate state statute), but uncertain as to whether New York's highest court would, in fact, construe § 470 as urged by defendants, see

Schoenefeld v. New York, 748 F.3d at 468–69 (observing that New York's lower courts had never interpreted § 470 to be satisfied by less than physical office space), this court certified the following question to the New York Court of Appeals:

Under New York Judiciary Law § 470

, which mandates that a nonresident attorney maintain an “office for the transaction of law business” within the state of New York, what are the minimum requirements necessary to satisfy that mandate?

Id. at 471

.

The Court of Appeals accepted the certification and, upon review, held that § 470

“requires nonresident attorneys to maintain a physical office in New York.” Schoenefeld v. State, 25 N.Y.3d at 25, 6 N.Y.S.3d at 222, 29 N.E.3d 230. In so ruling, the court observed that the statute, initially enacted in 1862, “appears to presuppose a residency requirement for the practice of law in New York State,” to which “[i]t then makes an exception, by allowing nonresident attorneys to practice law if they keep an ‘office for the transaction of law business' ” in New York. Id. at 27, 6 N.Y.S.3d at 223, 29 N.E.3d 230. The Court acknowledged that the 1862 statute had linked the office requirement to service of process, so that “service, which could ordinarily be made upon a New York attorney at his residence, could be made upon the nonresident attorney through mail addressed to his office.” Id., 6 N.Y.S.3d at 224, 29 N.E.3d 230. But, the two statutory parts were severed in 1909, with the office requirement codified at § 470 making no reference to service. See

id. at 27–28, 6 N.Y.S.3d at 224, 29 N.E.3d 230. In these circumstances, the Court of Appeals concluded that the term “office,” as used in § 470, could not be construed to mean only an address or agent sufficient for the receipt of service. Rather, the plain meaning of “office,” particularly when joined with “the additional phrase ‘for the transaction of law business,’ ” requires “nonresident attorneys to maintain a physical office in New York.” Id. at 25, 28, 6 N.Y.S.3d at 222, 224, 29 N.E.3d 230

.

The Court of Appeals acknowledged a legitimate state interest in ensuring that personal service can be made on nonresident attorneys practicing in New York courts. But, in construing the statute, it observed that the “logistical difficulties” with service at the time the office requirement was enacted had largely been overcome by state law authorizing “several means of service upon a nonresident attorney, including mail, overnight delivery, fax and (where permitted) email,” id. at 28, 6 N.Y.S.3d at 224, 29 N.E.3d 230

(citing N.Y. C.P.L.R. 2103(b) (McKinney 2015)), as well as the court's own rule conditioning the admission of nonresident attorneys without full-time employment in New York upon their designation of “the clerk of the Appellate Division in their department of admission as their agent for the service of process,” id., 6 N.Y.S.3d at 224–25, 29 N.E.3d 230 (citing N.Y. Comp.Codes R. and Regs. tit. 22, § 520.13(a) (2015) ). Thus, the office requirement could not be construed to require only an address for service. The term was properly understood to require a physical premises.

Because the Court of Appeals' response to our certified question does not moot Schoenefeld's constitutional challenge to § 470

, we proceed to address her claim and conclude that it fails on the merits.²

II. Discussion

A. Standard of Review

We review an award of summary judgment de novo, and will affirm if “viewing the evidence in the light most favorable to the non-moving party, there is no genuine...