Sheley v. Alaska Bar Ass'n, 5148

• Decision Date: 16 October 1980
• Docket Number: No. 5148,5148
• Parties: Elizabeth H. SHELEY, Appellant, v. ALASKA BAR ASSOCIATION, Appellee.
• Court: Alaska Supreme Court

Page 640

620 P.2d 640

Elizabeth H. SHELEY, Appellant, v. ALASKA BAR ASSOCIATION, Appellee.

No. 5148.

Supreme Court of Alaska.

Oct. 16, 1980.

Clark Reed Nichols, Anchorage, for appellant.

William W. Garrison, Anchorage, for appellee.

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

DIMOND, Senior Justice.

This appeal concerns the constitutionality of Alaska Bar Rule 2(1)(e), which requires an applicant for the Alaska bar examination to establish domicile in Alaska at least thirty days before the first day upon which the examination is to be given. ¹ Elizabeth Sheley applied for permission to sit for the February, 1980, examination, but the Board of Governors of the Alaska Bar Association (ABA) denied her application based on her representation that she could not meet the thirty-day residency requirement. Sheley appeals the Board's decision on the grounds that the residency requirement contained in Bar Rule 2(1)(e) violates her rights under the equal protection clause of the Alaska Constitution, ² and the privileges and immunities clause of the United States Constitution. ³

Sheley graduated from the University of Texas law school in May, 1978. She has been admitted to practice law in the states of Washington and Texas. She is presently serving as a law clerk for a federal district court judge in Texas. Since she planned to move to Alaska in June, 1980, and establish a law practice, she applied to take the February bar exam. She notified the Alaska Bar Association that she would be unable to meet the thirty-day residency requirement imposed by Bar Rule 2(1)(e) because she was employed as a law clerk and could not move to Alaska until after her clerkship. She also stated that she did "not have the financial resources to take the July bar because that in effect would make me unable to practice (law) and earn a living for at least four months." Based on her representation concerning the residency requirement, the Board of Governors denied her application to take the examination because she could not meet the residency requirement of Bar Rule 2(1)(e).

On January 28, 1980, Sheley appealed to this court, and filed a motion to allow her to sit for the examination pending the determination of the merits of her appeal. This motion was granted, and on February 20, 1980, we ordered the ABA to permit Sheley to take the examination. This opinion deals with Sheley's contention that the thirty-day residency requirement of Bar Rule 2(1) (e) violates the privileges and immunities clause of article IV, section 2, of the United States Constitution. ⁴

The privileges and immunities clause provides that "(t)he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." In Toomer v. Witsell, 334 U.S. 385, 395-96, 68 S.Ct. 1156, 1161-62, 92 L.Ed. 1460, 1471 (1948), the United States Supreme Court explained the purposes of the clause:

The primary purpose of this clause, like the clauses between which it is located-those relating to full faith and credit and to interstate extradition of fugitives from justice-was to help fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. For protection of such equality the citizen of State A was not to be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation. Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists. Paul v. Virginia, 8 Wall (U.S.) 168, 180, 19 L.Ed. 357, 360 (1868).

In line with this underlying purpose, it was long ago decided that one 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.

In short, the clause seeks to prevent discrimination against nonresidents, ⁵ to further the concept of federalism, ⁶ and to create a national economic unit. ⁷

Although the clause speaks in absolute terms by stating that noncitizens shall be entitled to "all" privileges and immunities, it does not preclude some disparity of treatment between residents and nonresidents. ⁸ The contours of the clause have not been precisely defined, "(p)erhaps because of the imposition of the Fourteenth Amendment upon our constitutional consciousness and the extraordinary emphasis that the Amendment received." ⁹ It is clear, however, that the clause does not protect some activities which a state may control as a direct adjunct of its sovereignty, ¹⁰ nor does it protect activities which are not "fundamental rights," ¹¹ i. e., those "basic and essential activities, interference with which would frustrate the purposes of the formation of the Union." ¹²

We agree with the New York Court of Appeals, ¹³ and the commentators, ¹⁴ that the practice of law by qualified persons is a "fundamental right" triggering scrutiny under the privileges and immunities clause. The United States Supreme Court has recognized the fundamental right to engage in "common callings" ¹⁵ and to pursue "ordinary livelihoods." ¹⁶ The Court has protected, under the privileges and immunities clause, the right to fish, ¹⁷ to market goods, ¹⁸ and to be employed in jobs arising from state oil and gas leases. ¹⁹ Assuming that there was once a status distinction between engaging in common occupations and in professional pursuits, ²⁰ it is not of constitutional significance. ²¹ The practice of law is like any other species of trade or commerce. In Corfield v. Coryell, 6 Fed.Cas.No. 3,230 p. 546 (C.C.E.D.Pa.1823), the first major case concerning the clause, Justice Washington's list of fundamental rights, quoted by the Court in Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 384, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354, 365 (1978), includes professional pursuits.

(Fundamental rights include the) right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal(.)

Corfield v. Coryell, 6 Fed.Cas.No. 3,230 pp. 546, 552 (C.C.E.D.Pa.1823) (emphasis added).

The right to practice law is a "fundamental right" calling for scrutiny under the privileges and immunities clause. The question for decision is whether Bar Rule 2(1)(e) can withstand that scrutiny. The thirty-day residency requirement of the rule clearly discriminates against nonresidents, because they are denied the opportunity to take the bar examination and, thus, precluded from practicing law. All members of this class are excluded from the examination, regardless of being otherwise qualified. Such discrimination is permissible only if the test first enunciated in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), which was confirmed in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), is satisfied.

(The privileges and immunities clause) bar(s) discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures. ²²

These principles were recently applied to the statute commonly referred to as "Alaska Hire," which required private employers to give preference to Alaska residents on jobs arising from oil and gas leases. AS 38.40.030. One of the criteria for qualifying as a "resident" was a requirement of physical presence in Alaska for one year. AS 38.40.090(1). In Hicklin v. Orbeck, 565 P.2d 159, 162-71 (Alaska 1977), this court unanimously held that the one-year durational residency or waiting period requirement was unconstitutional and, further, that a durational residency requirement in excess of thirty days was also unconstitutional.

But the requirement of residency was not entirely done away with. A majority of the court held that the other indicia of residence contained in AS 38.40.090(1), ²³ including a requirement of domicile, ²⁴ were not unconstitutional. Thus, under this view, preference in hire would still be given residents of Alaska-even though they were residents for only a brief period of time. Two members of the court disagreed. It was their opinion that there was no valid basis for the distinction drawn between residents and nonresidents by the Alaska Hire law, regardless of length of residency, and that to draw such a distinction would violate the privileges and immunities clause of article IV, section 2, of the federal constitution. ²⁵

Hicklin and the other appellants brought an appeal to the Supreme Court of the United States. This appeal was not on the basis of the one-year durational residency requirement. This court had declared that invalid. Rather, the appeal was directed to this court's holding, in a three-to-two decision, that Alaska could impose a simple residency requirement-without respect to the time of such residency-as a condition of employment in the oil and gas industry in Alaska.

The Supreme Court of...