SUPREME COURT OF NEW HAMPSHIRE v. PIPER
Legal provision: Article 4, Section 2, Paragraph 1: Privileges and Immunities Clause
ORAL ARGUMENT OF MARTIN L. GROSS, ESQ., ON BEHALF OF THE APPELLANT
Chief Justice Warren E. Burger: We will hear arguments next in Supreme Court of New Hampshire against Piper.
I think you may proceed whenever you are ready, Mr. Gross.
Martin I. Gross: Mr. Chief Justice, and may it please the Court, in a recent swearing in ceremony, in several, as a matter of fact, the New Hampshire Supreme Court has admonished new admittees that in the court's view New Hampshire lawyers should not just be merchants of law, but instead should be servants of justice.
The residency requirement involved in this case is one of the ways the New Hampshire court has chosen to reinforce the court's aspirations for New Hampshire lawyers as part of a system for administering justice in the state.
The New Hampshire court has concluded that requiring residency at the time of admission assists in assuring that New Hampshire lawyers will be available to perform obligations that the court has imposed on lawyers in the course of defining the nature and characteristics of the proper practice of law in the state.
At stake in this case, we submit, is whether the New Hampshire court can continue to reinforce its aspirations for New Hampshire lawyers through use of a simple residency requirement that New Hampshire lawyers be residents of New Hampshire at the time they take the oath of admission.
Unidentified Justice: But they may be nonresidents the next day and still practice in New Hampshire?
Martin I. Gross: We suggest not, having acted in good faith with the New Hampshire Supreme Court.
The New Hampshire Supreme Court requires residency at the time of administering the oath, and in order to become a resident, one has to undertake to the court that one has become a resident with the indefinite intention of remaining.
Unidentified Justice: Suppose one has been born, and a lifelong resident of New Hampshire, at that time becomes a member of the New Hampshire bar, and the next day moves over to Vermont.
May he continue to practice law in New Hampshire?
Martin I. Gross: Yes, and that, of course... therein lies one of the great challenges of our brethren in this case, because they seem to say that because New Hampshire does not revoke licenses if someone moves away, that somehow there is something wrong with this requirement.
If I may just express to the Court what the New Hampshire court's reasons are for that requirement, then I would like to address why the revocation argument doesn't hold any water.
I think the facts bearing on the New Hampshire Supreme Court's reasons are extremely important.
We have no need to guess in this case.
Those reasons are embodied in an affidavit of New Hampshire Chief Justice King.
Those reasons appear at the Joint Appendix on Page 32, and the case comes here on summary judgment.
There are no findings contrary to Justice King's affidavit, and on this record I don't think there is any room to doubt that Justice King accurately states what the New Hampshire court is doing with the residency requirement.
And what it is doing is as follows.
As the affidavit recites, the New Hampshire court regards residency as establishing New Hampshire as the principal place of physical residence for the indefinite future.
So residency at the time of admission is the New Hampshire court's chosen proxy for promoting sustained physical presence in the New Hampshire community.
Unidentified Justice: What is the requirement for taking the examination in the first instance?
Is it either residence or a statement of intent to become a resident?
Martin I. Gross: Yes, precisely.
Unidentified Justice: Either one will do?
Martin I. Gross: Either one will do.
And the only time that one has to become a resident is at the moment before the oath of admission is administered.
That is the time that the admission requirement bites.
And it is at that time that we say that it has proven effective to accomplish the goals that the New Hampshire court wishes to carry out.
Why is it important--
Justice Thurgood Marshall: They don't care what happens after?
Martin I. Gross: --Oh, they care.
Oh, yes, indeed, they care.
Justice Thurgood Marshall: What do they do if you move out?
Martin I. Gross: Well, so far they haven't done anything.
Justice Thurgood Marshall: Well, then you have to answer my question they don't.
Martin I. Gross: Oh, yes--
Justice Thurgood Marshall: The only thing they want is for you to be a resident of New Hampshire for... how long does it take to administer the oath?
Is that it?
Martin I. Gross: --Moments, Your Honor, but I don't believe--
Unidentified Justice: Well, is that it?
Martin I. Gross: --No, it is not.
I don't believe that's the New Hampshire court's position.
Justice Thurgood Marshall: What else can you do to somebody who takes the oath and then leaves that night?
Martin I. Gross: Excuse me?
Justice Thurgood Marshall: That night.
Martin I. Gross: Well, I suppose that you could chase them, if that were you--
Justice Thurgood Marshall: I would like something better than supposing.
Martin I. Gross: --Let me just simply say that the New Hampshire court doesn't, and the reason it doesn't is that it has found, and I think the facts in this case demonstrate that it need not in order to accomplish what it is trying to do in requiring the requirement in the first place.
Referring to Justice King's affidavit, we invite the Court's particular attention to the reasons in Paragraph 9, and I might say this is an important statement of reasons because it was totally overlooked or disregarded by the lower courts.
It is possibly most important in the terms of the New Hampshire court's high aspirations for the New Hampshire bar that the New Hampshire lawyers not just be merchants of the law, but be servants of justice.
In the New Hampshire court's view, the residency requirement supports availability of lawyers for the extra activities the New Hampshire court expects of them above and beyond basic concerns for competence and ethical conduct.
Unidentified Justice: Mr. Gross, I suppose states vary on this, don't they?
Martin I. Gross: Yes, they do.
Unidentified Justice: As I understand, in Virginia, for instance, the Commonwealth insists that an attorney... that residency is not enough.
He has to have an office in the state.
Now, at least New Hampshire doesn't go that far.
Martin I. Gross: No, and I might observe, Your Honor, that New Hampshire does not go as far as some states do in requiring residence at some point prior to the admission of the oath.
There are several states that require residence.
And I believe Virginia may be one of them that require residence at the point of actually taking the bar examination, or at the point of applying for admission to the bar, and those are far more rigorous requirements than New Hampshire's, which is a simple requirement.
Unidentified Justice: Suppose Mrs. Piper here, living, as she did, just across the border in Vermont, maintained or joined a law firm that had an office in New Hampshire.
Still not eligible?
Martin I. Gross: No, that would not be sufficient, and the reason it wouldn't be sufficient is because in order to achieve the New Hampshire court's purpose of sustained physical presence in order to provide availability for these tasks that the Court wants lawyers to perform over and above basic competence and ethical conduct, the requirement of an office doesn't seem to work as well.
The reason: If it is not a primary office, it doesn't assure physical presence.
And if it is not a primary office, it could simply be a mail drop or an answering service or something like that.
Unidentified Justice: Suppose it is in my example, it was a primary office.
Martin I. Gross: Well, in terms of a primary office, then I guess some line drawing would have to be done about whether in fact it was a primary office.
Is it really the place where this lawyer spends most of his or her time?
How do we determine that?
Unidentified Justice: Suppose it was the only place.
She was offered a partnership in a New Hampshire firm, but lived across the line in Vermont, just commuted.
Like a lot of areas in the country, you commute across state lines to do the only law practice you do.
Martin I. Gross: Well, obviously, if it were the only place that one practiced, then it would assure physical presence for the purpose--
Unidentified Justice: Well, I know, but that wouldn't be enough in New Hampshire.
Martin I. Gross: --Not to meet the New Hampshire requirement, because the New Hampshire requirements go to more than 9:00 to 5:00 practice of law.
Unidentified Justice: Does the record show anything about what the lady's intention was with respect to an office, or where she was going to practice?
Martin I. Gross: Just give me a moment.
I want to think.
Unidentified Justice: Did she apply for an exemption, or for a waiver?
Martin I. Gross: She applied... she initially, before she applied to take the exam, inquired whether an exemption might be available.
The answer was no.
She applied anyway, signed a sworn statement indicating--
Unidentified Justice: Is that in the record?
Martin I. Gross: --Yes, it is.
Unidentified Justice: Do you know where it is?
Martin I. Gross: Yes, I will get... I will focus on that in just one moment, if I may.
That is at Joint Appendix Page 43.
Unidentified Justice: Thank you very much.
Martin I. Gross: She was aware of the residency requirement to begin with.
She took the exam, or she actually applied, signed a statement of intention to reside in New Hampshire, giving the address of Littleton, New Hampshire.
Beyond that, I don't believe the record indicates any place of intention to take up employment.
I believe she stated in her letters to the court that she intended to have employment in New Hampshire in order to avoid professional conflicts with her husband, who is a Vermont attorney.
Unidentified Justice: The District Court said that the respondent, Ms. Piper, resided in Lower Waterford.
Martin I. Gross: Yes, sir.
Unidentified Justice: Is that right across the river from Littleton?
Martin I. Gross: I don't know whether it's across from Littleton or it's across from Lyme.
It is across the river from New Hampshire.
The state line is the westerly boundary of Connecticut River, and Mrs. Piper lives about 400 yards--
Unidentified Justice: Yes, but that's about 120 or 130 miles that the river is the boundary.
Is it in the Littleton area, say, rather than the Brattleboro area?
Martin I. Gross: --Oh, yes.
It is up in that neck of the woods, Your Honor.
It isn't way down at the bottom.
Unidentified Justice: I notice the rules that the court construe deal with taking the bar exam, and the admission of people who have just taken the bar exam.
What do the rules provide with respect to people who have been admitted in other states maybe five or ten years earlier and practiced for a period of time?
Is there any provision for, say, a member of the New York bar ever to be admitted?
Martin I. Gross: Only by examination, Your Honor.
Unidentified Justice: It must be by examination.
Martin I. Gross: There is no admission on motion.
I think I'd like to pay some attention to the question that Judge Marshall asked about the lack of revocation, because I gather it is a matter of concern.
There are two reasons why I suppose it is being argued in this case that it is important to attach... important that the New Hampshire Supreme Court doesn't chase lawyers to assure they remain New Hampshire residents after they take the oath.
The arguments seem to have two purposes.
The first is to insinuate bad faith or unworthy motive on the part of New Hampshire's court, but again, we suggest there is nothing in the record to support unworthy motivation.
New Hampshire's reasons are what they are, and they are plainly set forth in the Chief Justice's affidavit.
The other apparent purpose, at least the purpose that appears to me, is to argue that the New Hampshire residence requirement fails to meet this close tailoring test of standard privileges and immunities analysis, and I would just like to observe that it is an odd argument that the rule would have to be more restrictive in order to meet the close tailoring test, that is, more restrictive by requiring people to remain New Hampshire residents to infinity in order to keep their license.
Unidentified Justice: Doesn't it bear on the strength of your justifications for your rule if it is clear that a lawyer who is a resident of New Hampshire can move out of the state and still practice law in New Hampshire?
Because a lot of the reasons that you give would sort of wash out with him.
You wouldn't have control over him.
You couldn't control his pro bono work, et cetera.
Martin I. Gross: Yes, but I want to express once again--
Unidentified Justice: Yes?
Is that right, or not?
It does bear on the strength of your justification?
Martin I. Gross: --Yes, it does, and I would like to demonstrate to you why in practice it supports the justifications.
First of all, we are not talking about a mere scintilla of time.
If people are going to deal in good faith with the New Hampshire Supreme Court, which I sincerely hope they would do if they are asking to be admitted to the bar, they are asked to express their intention to become residents in the indefinite future.
Secondly, the present requirement, and I think this is important to grasp, does the job of promoting sustained physical presence without further restrictions.
Even the beyond the record figures cited in the Vermont bar amicus brief show that almost 90 percent of New Hampshire lawyers remain in the state, and so the present requirement seems to be a practical success to accomplish these objectives that the New Hampshire Supreme Court wants to accomplish without additional restrictions.
The statistics offered by Mrs. Piper and the Vermont bar brief don't even really show that the 13.6 percent number they claim are out-of-state lawyers.
The problem with their statistics is that they rely on business mailing addresses, not residence addresses, and the statistics sweep in lawyers who may be away temporarily on government service.
For example, the numbers show that 24 New Hampshire lawyers had business addresses in the District of Columbia, the second highest number of supposed absentees.
Virginia had 18, the fourth highest.
So, we are talking about lawyers who may leave New Hampshire temporarily to come down here on government service, and then may go back.
They are swept into these statistics, and the statistics also sweep in lawyer who may practice in neighboring states but may retain New Hampshire residence, and so they are still available to participate in these additional activities that the court requires of New Hampshire lawyers.
And there again, we see those statistics presented, and these are at Joint Appendix Page 30: Massachusetts, 96; Main, 19; Vermont, 13.
So, what we see is a rule which bites at the time of admission of the oath, and as a practical matter, that is all that's all it needs to do, because as Judge Campbell of the Court of Appeals noted, the New Hampshire court could reasonably conclude that not many New Hampshire lawyers will both pull up stakes and continue practice in New Hampshire, and the bureaucracy required to keep track of their comings and goings would not be worth the effort.
And I suggest to you that that is exactly what the New Hampshire court has concluded, because their present rule does work, and it does work as a reasonable proxy for sustained physical presence in the state in order to carry out these extensive additional duties that the New Hampshire court expects of members of the New Hampshire bar.
If I can turn now to the legal points that we are talking about, the first legal point that we made is that the New Hampshire court's residency requirements shouldn't be subject to federal judicial scrutiny under the privileges and immunities clause.
At the outset, I would like to make it clear that we are not contending that state court regulations of the bar are immune from all constitutional scrutiny by federal courts.
That is simply not the law.
It is not our argument, and we don't make it here.
What we do argue, as the Court recently pointed out in United Building and Construction Trades, is that there is a threshold issue to be determined in every case involving the privileges and immunities clause, whether the interest at stake is fundamental to the promotion of interstate harmony.
And in this case, the question is whether state court control over the legal profession involves regulation of an interest fundamental to the promotion of a state--
Unidentified Justice: Well, you are assuming, aren't you, Mr. Gross, that the lawyers in question do business as individuals when you say that the privileges and immunities clause applies to.
For instance, a lawyer doing business as a professional corporation, I presume, couldn't claim the benefit of the privileges and immunities clause.
Martin I. Gross: --I believe the citizens... the privileges and immunities clause speaks of citizens, and so anyone who is a citizen could claim it.
Unidentified Justice: We have held it doesn't apply to corporations.
Martin I. Gross: That may be the Fourteenth Amendment, but in any event, in New Hampshire, while we may practice as professional corporations, in respect to our duties to the court, we are always individuals, and we are held responsible as individuals to the court.
And while there may be a distinction for some purposes, where, as here, we are talking about the relationship of a lawyer to the court and what the court expects of lawyers, I would not want to claim that somehow practice in a corporate mode would somehow insulate a New Hampshire lawyer from responsibilities that they would otherwise have to the court.
Unidentified Justice: Well, I think the argument is quite the contrary, that if they practice in the corporate form, they cannot get any benefit from the privileges and immunities clause which they now are urging to somehow insulate themselves.
Martin I. Gross: Yes, and I understand and accept that.
I guess it does not lie well in my argument to take any refuge in that, because I believe that New Hampshire lawyers' relationships with the court are individual relationships, and so I wouldn't want to claim the benefit of saying that anybody who was practicing in the corporate form was any different from a lawyer practicing as an individual.
The matter of whether the privilege and immunities clause applies is a threshold question.
We rely on a long line of this Court's decisions which say that instead of being an interest fundamental to the promotion of interstate harmony, regulation of the bar is a sovereign function of the state court, is at the core of the state's power to protect the public, is essential to the primary function of administering justice, and involves the pursuit of an especially great state interest.
Justice Sandra Day O'connor: Mr. Gross, do you think Bradwell versus Illinois is still good law?
Martin I. Gross: I don't want to discard it.
It is a decision of this Court that has never been overruled or expressly questioned.
I believe that a lot of things have happened since Bradwell was decided.
I think this case is ripe for decision under today's circumstances, and the New Hampshire Supreme Court believes that in requiring these additional duties of New Hampshire lawyers it is in tune with the times.
Justice Sandra Day O'connor: Well, do you think that Bradwell's holding that a state can exclude women from the practice of law without violating the privileges and immunities clause is still good law?
Martin I. Gross: Without violating... I don't think it is good law to say that a state court could exclude women from the practice of law for any reason, and to put the privileges and immunities clause in there, I guess, would raise some technicality with me about what the privileges and immunities clause is designed to do.
If I were bringing the case on behalf of a woman applicant who had been denied admission simply because she was a woman, I wouldn't use the privileges and immunities clause.
I'd use the Fourteenth Amendment, and I think I'd win.
Unidentified Justice: Where do you think the privileges and immunities clause is found, I mean, what amendment?
Martin I. Gross: The privileges and immunities clause, in Article 4, Section 2 of the Constitution.
And as this Court has held repeatedly, that is a constitutional protection which is relative.
It applies as a threshold matter only where there is an interest fundamental to promotion of interstate harmony is concerned.
It doesn't apply at all where, as here, we argue that the function of regulating the bar is a very, very high matter of importance to the state.
Unidentified Justice: Mr. Gross, I am just wondering if your argument would... I notice in your opponent's brief there are 269 members of your bar that have offices out of state.
Do you think the Supreme Court of your state would have the power to say that they must confine their practice to the state in order to further these objectives that you describe, and not divert their energies by practicing elsewhere?
Martin I. Gross: Well, therein lies another problem with a more restrictive rule, if Your Honor pleases.
Unidentified Justice: I am not suggesting it would be a better rule.
I am asking if you think they would have the power to adopt such a rule.
Martin I. Gross: And I am addressing that, because I am concerned about limitations on the right to travel.
One of the difficulties with the New Hampshire Supreme Court saying that if you leave, your license is revoked, is that the next--
Unidentified Justice: No, I am not saying if you leave.
I say just, A, you've got to be a resident, and B, you must confine your practice to this state, because we are interested in having the highest quality practice within our state.
We don't want your energies diverted by going over across the river.
Martin I. Gross: --I think they might do that, but I don't believe that that would accomplish the objectives that the New Hampshire Supreme Court has in mind.
Unidentified Justice: But you would think they would have constitutional power to do that?
And if you are going to say yes to that, I mean, I don't see how that's really different from saying to somebody across the river, you can't come into the state.
But it seems to me you must say that you could tell all the members of your bar, don't practice elsewhere if you want to retain your membership.
Martin I. Gross: Well, you see, I don't believe that ties in with what the New Hampshire Supreme Court is trying to do.
It might well be as a matter of abstract principle--
Unidentified Justice: All the reasons that you have explained would seem to me to support such a rule.
Martin I. Gross: --Well, one of the difficulties I have had is that I haven't been able to outline those specific reasons.
The reasons have to do, I submit, not merely with the everyday practice of law and the matter of competence and ethical conduct.
They have to do with community service.
They have to do with service on bar committees.
The have to do with--
Unidentified Justice: Right, and my rule would serve those same functions.
Martin I. Gross: --Yes, I do, and I think probably it would be more restrictive than the rule we have.
And I am not here to campaign for a high degree of restriction.
I am here to campaign only for the degree of restriction that this Court has deemed necessary to accomplish these purposes.
The point that we have is this on the threshold question.
If the interest of individual states in regulating the bar is as great as this Court has repeatedly recognized, then we are not dealing with an interest fundamental to the promotion of interstate harmony.
The two would seem to be logically reciprocal, because the greater degree of regulatory interest recognized in individual states, the lesser the interest in promoting interstate harmony through national treatment of the subject, and this isn't a mere result of a game of logic.
The amicus brief of Virginia and other states shows a solid historical foundation for our position in the sense that at the time of the adoption of the privileges and immunities clause, state bar residence requirements existed side by side with the clause, and were well recognized at that time.
And our brief points out that the lower courts in this case didn't deal adequately with the threshold issue even though we strongly argued it.
The matter of In Re Griffiths has figured prominently in my brother's brief, all through this proceeding.
We think that Griffiths doesn't say anything about how to decide this case.
Particularly does it not say anything about whether we have got here an interest which is fundamental to the promotion of interstate harmony.
Griffiths was an equal protection case dealing with the suspect classification of alienage, and it simply held that the political function exemption doesn't apply to lawyers.
We don't claim lawyers have a political function here.
We claim that lawyers are subject to this high degree of regulation, and that the states have this tremendous interest in regulating lawyers, because lawyers in effect share the judicial power.
They are different from physicians.
They are different from the health care profession.
They are different from professions which the states regulate in the ordinary exercise of the police power.
Lawyers share in the administration of justice.
They share in the administration of the judicial power, and we think the state's interest in regulating lawyers is fundamentally different.
Unidentified Justice: What if a lawyer from Alexandria wants to come up in practice in your state?
What must he show, or she?
Martin I. Gross: In order to be admitted?
Unidentified Justice: Yes.
Martin I. Gross: Character and fitness, for openers, pass the bar examination, which consists of the Multistate Bar Examination and an essay examination, pass the Multistate Professional Responsibility Examination, and show the residence requirement.
Unidentified Justice: What if the lawyer has practiced for 20 years in Virginia?
Is there no--
Martin I. Gross: There is no admission on motion in New Hampshire.
Unidentified Justice: --No admission on reciprocity.
Martin I. Gross: And we share that with several and I believe a growing number of states.
I would like to turn now to the matter of deference.
One of the issues--
Justice Sandra Day O'connor: Mr. Gross, before you do that, and with reference to your last argument, do you think that In Re Griffiths, where the Court rejected the kind of argument you are making on behalf of lawyers, is relevant?
Martin I. Gross: --I don't believe the case is relevant, and I think it is not because I don't think that the case rejected an argument like the one I am making, because I think in Griffiths what the Court said is that alienage doesn't make any difference for bar admission under any circumstances, and we say that... we are not arguing with that.
We are saying the New Hampshire Supreme Court wants his physical presence in order to perform these duties, and a resident alien can do that as well as a resident citizen, and a resident alien can do that better than a nonresident citizen.
At this stage, I would like to--
Justice Thurgood Marshall: Mr. Gross, just one thing before you sit down.
Exactly what harm is done to New Hampshire by somebody that goes up, passes the bar, passes the test, and is not a resident?
Martin I. Gross: --Your Honor, they are not available on a sustained basis to carry out the additional duties that the New Hampshire Supreme Court expects of them, and they are not there on a sustained basis to--
Justice Thurgood Marshall: How does that hurt the state?
All I know the state has done is given them a piece of paper.
Martin I. Gross: --Well, it hurts the state in the New Hampshire Supreme Court's view, Your Honor, because the court believes that the administration of justice in the state is improved by activity by lawyers above and beyond their everyday practice of law.
Unidentified Justice: How will this one case affect that?
Martin I. Gross: One case of a person moving in and practicing?
Possibly only de minimis, but you can't deal with just one case.
Unidentified Justice: Would 100 be de minimis?
Martin I. Gross: Excuse me?
Unidentified Justice: Would 100 be de minimis?
Martin I. Gross: Not in New Hampshire.
Unidentified Justice: What harm would it do?
Martin I. Gross: It would simply make it more difficult for the court to expect all New Hampshire lawyers to conduct themselves in the way that the court wants them to with respect to community activity.
Unidentified Justice: Well, some of these New Hampshire lawyers have moved to... they don't have any interest in that, do they?
Martin I. Gross: And they are probably not practicing law in New Hampshire any more either, and so--
Unidentified Justice: That's what I'm saying.
Martin I. Gross: --If they move away, then they are not New Hampshire lawyers any more.
As long as they are not attempting to practice.
But our court is saying, as long as they are attempting to practice law in New Hampshre, they should share in the obligations that our court wishes to impose on them.
Unidentified Justice: You must, Mr. Gross, you must have attorneys admitted to the New Hampshire bar that go to Boston and come up and try cases in New Hampshire.
Martin I. Gross: I am sure there are some of those.
Unidentified Justice: But you are not concerned with that.
Martin I. Gross: Well, the court--
Unidentified Justice: This is the weak spot in your case, if there is any.
Martin I. Gross: --Yes, I have to say it is, and I have to say that my response to the point that it is a weak spot is that what we have is working very well with a minimal degree of restriction.
And yes, there are lawyers who go to Boston and who occasionally come up to New Hampshire, but they are a small number compared to what is actually the effect of this rule.
And in most cases the lawyers who... overwhelming number of cases, the lawyers who establish residence at the time of admission stay there and support the work that the New Hampshire Supreme Court expects of them, and others--
Unidentified Justice: I suppose that is true of any state, really.
Martin I. Gross: --Well, it may be, but I think it is a matter of record in this case, Your Honor.
Unidentified Justice: Mr. Gross, is there any record of waivers for people who say, I live across the border, I want to commute into New Hampshire and practice law, and I have a job with a law firm, I want a waiver, and if you will give it to me, I will take the bar, and go to work in New Hampshire?
Is there any record of waivers in those situations?
Martin I. Gross: I can represent to the Court that there are no such waivers, that the treatment that Mrs. Piper was accorded by the court in this case is 100 percent.
Unidentified Justice: Right, well, and so you feel the rule is that rigid, that it just doesn't make any difference.
Martin I. Gross: Well, rather than use the word "rigid", I would say applied uniformly.
Chief Justice Warren E. Burger: Mr. Meyer.
ORAL ARGUMENT OF JON MEYER, ESQ., ON BEHALF OF THE APPELLEE
Jon Meyer: Mr. Chief Justice, and may it please the Court, it is our position under the standards of review developed by this Court under the privileges and immunities clause of Article 4 that it is incumbent upon New Hampshire to establish that out of state attorneys admitted to the New Hampshire bar would be the peculiar source of a substantial problem relating to legal practice, and furthermore, that the particular terms of the New Hampshire residency requirement are closely related to remedying the problem stated.
Unidentified Justice: What provision of the Constitution do you rely on to say that the burden is on the state of New Hampshire rather than on the person in the position of your client?
Jon Meyer: Your Honor, I think under... although I don't think the Court's jurisprudence is that clear in allocating the burden of proof, it is my understanding of Hicklin and Toomer and the other cases interpreting the privileges and immunities clause in Article 4, and it is that we rely upon rather than the same clause in the Fourteenth Amendment, that once the applicant establishes that the measure is discriminatory against out of staters, and this measure is discriminatory on its face, that the burden then shifts to the state to establish, as Hicklin put it, that the out of staters are the peculiar source of a substantial problem, and that the particular measure is closely related to remedying the problem stated.
Justice Sandra Day O'connor: Do you think Camden changed that test somewhat?
Jon Meyer: Your Honor, I think that Camden is significant because it restated the case.
The precise language this Court has used in developing the test has varied slightly from case to case.
I think Camden is significant because it restates that test, and restates it, I believe, precisely in the terms I use, peculiar source of a substantial problem, and that it be closely related.
And I think Camden is also a significant case because in that... again in that case the city had some fairly strong claims to be exempt from the clause's coverage altogether, insofar as the measure only applied to public employees.
Nevertheless, this Court held that the clause applied, and I think that shows an intention to give Article 4 a broad reading, which we believe is consonant with the values that are protected by it.
What I would like to do in the time allotted is respond to New Hampshire's contentions that it should have... in effect, the rule should be examined under a lesser standard of review or no standard at all, and then to look at the New Hampshire justifications in the context of the standard that this Court has set forth.
Justice Lewis F. Powell: Mr. Meyer, before you get into that, may I ask you this question?
Is the issue before us only related to lawyers who are willing to take the bart in New Hampshire and who have taken it?
Jon Meyer: Yes, Your Honor, that is correct, and I want to clearly distinguish the challenge raised in this case from the challenge, for example, raised in the case of Leis v. Flynt, where the lawyer in fact coming from out of state said he had a right under due process to practice without meeting the requirements of the state.
We acknowledge the right of the state of New Hampshire to establish admission standards.
Our position is, though, that those standards cannot violate the constitutional rights of applicants.
Justice Lewis F. Powell: One of those standards may be that the bar examination of your state must be passed.
Jon Meyer: Yes, Your Honor.
Chief Justice Warren E. Burger: I thought your friend told us that in order to take the examination in the first place, the applicant must represent that they intend to make a residence in New Hampshire and practice law there, and that without that they are not even permitted to take the examination.
Is that right?
Jon Meyer: Mr. Chief Justice, that is correct.
In fact, there is no--
Chief Justice Warren E. Burger: That isn't quite and fully consistent with your earlier response.
You have cleared it up now.
Jon Meyer: --Your Honor, we don't think... yes, I would like to clarify our position.
We think that the requirement of a bar examination is a reasonable and legitimate requirement, but if the state conditions it upon meeting a residency test, then we think the residency condition is not permissible.
We think the requirement of the test is permissible--
Unidentified Justice: Well, do you think the state of New Hampshire can require you to come physically to Concord and take the bar examination, or do you think you can have it sent to you in Los Angeles?
Jon Meyer: --No, Your Honor, we think the state of New Hampshire can require you to come to Concord to take the bar exam.
We also think--
Unidentified Justice: So they would be requiring you to reside in Concord at least for the day that you are in Concord?
Jon Meyer: --Your Honor, the difference, and my client had no objection to actually going to New Hampshire to take the bar exam.
The difference is, the state's residency requirement, as stated by my brother, requires you to establish your principal place of physical domicile in state and intend to do that for the indefinite future.
Obviously, there would be no problem with my client going over the border, but she did not feel as a matter of honesty that she could say that she was intending to stay there in the indefinite future when in fact she wanted... her intention was to reside with her family in Vermont.
I would like to just briefly--
Justice Sandra Day O'connor: Mr.... Go ahead.
Unidentified Justice: But your position is also that this rule is unconstitutional even if the applicant wants to have her principal office in Vermont.
Jon Meyer: --Yes, Your Honor, but I think an office requirement would be... I mean, that is a different... again, the constitutionality of that requirement is a different question.
Unidentified Justice: Well, would you be satisfied if we ruled in your favor to the extent that at least where the intention is to commute into New Hampshire to your principal legal office?
Jon Meyer: Your Honor, I think satisfaction with that response would be an overstatement.
I think that ruling would--
Unidentified Justice: Well, but how about satisfying your client?
Jon Meyer: --Well, Your Honor, my client--
Unidentified Justice: It may not satisfy your organization, but it may--
Jon Meyer: --Your Honor, I did want to make that distinction.
I think that the principal office requirement would raise some significant problems under the commerce clause, but in terms of my client, if there had been an office requirement, this case never would have been brought.
And I would like to, in response to your earlier question, in terms of what was her intention and what is in the record, in the letter that she sent requesting exempting to the New Hampshire Supreme Court--
Unidentified Justice: --I see it, on Page 41, 42?
Jon Meyer: --No, it is contained on Pages 12 to 14 of the Appendix.
She stated in there that she wanted to practice in New Hampshire to avoid conflicts with her husband, and she also stated,
"I am interested in admission to the New Hampshire bar exam inasmuch as I have a possible job with Attorney Panccast in Littleton, New Hampshire. "
Unidentified Justice: Yes.
Jon Meyer: So that is the only information that I am aware of in the record with respect to her intention after admission.
With respect to the--
Justice Sandra Day O'connor: Mr. Meyer, in looking at the privileges and immunities clause issue, do we have to look at the threat posed by the whole class rather than as to the particular individual?
Jon Meyer: --Yes, Your Honor, we do.
We concede that.
But on the other hand, the requirement, I think, there has to be concern as to whether the class encompassed is substantially overbroad beyond the particular problem that is designated.
There has to be some, I think, connection, and this Court would say close connection, between the class actually negatively affected by the discrimination as opposed to the class raising what the state alleges to be the peculiar and substantial problem.
I would like to briefly respond to this question of the lack of a residence requirement after admission.
There is no information either in the record or to my knowledge anywhere else as to how many New Hampshire attorneys actually reside out of state.
I think it is instructive in itself that the New Hampshire Supreme Court has never seen fit to collect this information.
The only information we have is how many attorneys had a principal office address outside of New Hampshire, and that number in 1982 was 269.
But we think that that substantially--
Unidentified Justice: Out of how many, Mr. Meyer?
Jon Meyer: --Out of, in 1980, it was 1,987... in 1982.
We think, though, that that total substantially undercounts the number actually out of state.
We think there is likely to be a significant class of people who practice in New Hampshire, as my client desired to do, who actually live outside of the state.
But I think the principal fallacy as we see it in New Hampshire's argument on these statistics is, they say, well, most New Hampshire attorneys live in state, and we concede that that is probably true, and they therefore jump to the conclusion that the reason they live in state is because of the residency requirement.
Unidentified Justice: Mr. Meyer, let me go back just a moment to a statement you made.
You say your client wanted to practice in New Hampshire.
Now, does the record show any specific plan, like, was she going to open an office in Littleton?
Jon Meyer: Your Honor, the only information contained in the record is what I cited before, her statement to the Supreme Court that she had a possible job offer in Littleton, that she wanted to practice in New Hampshire to avoid conflicts with her husband, practicing in Vermont.
But again, we think that the claim that because most people live in New Hampshire, the residency requirement has been effective is fallacious, because although I may be prejudiced, we believe that the reason most people live in New Hampshire, most attorneys, is not because of the residency requirement, but because New Hampshire is a nice state to live in, and because if you happen to practice in New Hampshire, it is a convenient state to live in.
So, we think residency requirement or no residency requirement, the likelihood is that the majority of New Hampshire practitioners are going to continue to live in New Hampshire.
Now, the significance of a lack of after admission residency requirement is, Number One, that it suggests that the particular requirement is really not closely tailored to the problem stated, but more importantly, it suggests that the problems alluded to really are lacking in significance.
If in fact lawyers residing out of state but admitted to the New Hampshire bar pose such a substantial problem, then why has New Hampshire not even made any effort to count how many there are?
Unidentified Justice: Isn't your opponent's position basically that the requirement is working the way it is, that if you have 269 out of 1,900 living out of state, the great majority of those are not attempting to practice in New Hampshire?
Jon Meyer: Your Honor, our response to that is, Number One, that he doesn't know--
Unidentified Justice: Do you know?
Jon Meyer: --No, because no statistics, no count has ever been made as to where New Hampshire attorneys live.
Unidentified Justice: Then was this a proper case for the District Court to render summary judgment on?
Jon Meyer: Your Honor, I think it was a proper case, because I think that the District Court had to rely on the information presented to it.
There was no contest in terms of the evidence that was presented.
And that the... in terms of this Court's--
Unidentified Justice: But your opponent argues the system as it is now is working.
You say it really isn't working.
And he says the New Hampshire lawyers practicing out of state or living out of state are not practicing in New Hampshire.
You say some of them are.
Jon Meyer: --But, Your Honor, it was not necessary for the District Court to reach that issue, because even if the New Hampshire residency requirement has been successful in ensuring that most New Hampshire attorneys live in New Hampshire, we don't think that that is an adequate justification.
We think that then it comes to the specific justifications provided by the state, and the principal one they are relying upon is saying, well, it is important that New Hampshire attorneys live in New Hampshire in order to be available for public service and pro bono assignments from the court.
We don't question that that is an important interest.
However, we think it is paradoxical to say that, in terms of the interests of the clients, that by admitting more attorneys, you are going to have a problem with pro bono work.
We believe, if anything, it is the opposite, that by permitting previously excluded attorneys, there are going to be more attorneys available.
Justice Lewis F. Powell: Mr. Meyer, on that particular question, what if the lawyer lives in Chicago, or San Francisco, or New Orleans?
Is it your view that the New Hampshire court would have the right to appoint him to defend an indigent criminal and compel him to come to New Hampshire to try it?
Jon Meyer: Your Honor, assuming that the New Hampshire Supreme Court has a right to make involuntary appointments, I do not believe that the court should be limited by the geographical location of the individual.
If the individual applies to the New Hampshire bar, which is an integrated bar, and joins that bar, then it is our position that he or she are subject to the exact same obligations as attorneys who reside in New Hampshire.
Justice Lewis F. Powell: Do you think as a practical matter they could perform those obligations?
Depending on where they live, I suppose.
Jon Meyer: Your Honor, I think it depends not so much on where they live.
It depends on where they have a law office.
Presuming they... well, if they want to join the New Hampshire bar in the first place, the likelihood is not that they are going to live in California.
The likelihood is that they are going to live in Massachusetts.
In any event, if they are going to practice in New Hampshire, and getting admitted to the bar involves a substantial commitment in time and resources, so one would presume that they intend to practice in New Hampshire, and if they are available to practice in New Hampshire, then they should also be available to take criminal or other types of work.
Justice Lewis F. Powell: It does impose a burden on the court.
I know when I was practicing law, the judge would call you on the telephone and say, we have an indigent who needs counsel, are you available, and he gets an answer right away.
I suppose he could call long distance to New Orleans.
Jon Meyer: Your Honor, I think that goes another justification asserted by New Hampshire, and that is availability for court appearances and for disciplinary hearings.
And it is our position that New Hampshire already has adequate assurances of availability in terms of the long arm jurisdiction, and also the Supreme Court, state Supreme Court disciplinary rule making you subject to the court's jurisdiction by becoming a member of the bar.
Unidentified Justice: I wonder if that is an entirely satisfactory answer.
Supposing that there is an emergency application filed for an injunction, temperate TRO, you know the name of the opposing counsel, although he hasn't actually made an appearance.
Now, ordinarily those things are set on very short notice, and if you know the name of the opposing counsel, you are supposed to get a hold of him and tell him about it.
Isn't that the practice in New Hampshire, as the law is elsewhere?
Jon Meyer: Yes, Your Honor.
Unidentified Justice: Well, if this client is represented by the El Fideldo attorneys in Los Angeles, it is just going to mean several days, isn't it, before they can have a hearing, whereas if they were represented by somebody in Manchester or Concord it, could be tomorrow.
Jon Meyer: Well, Your Honor, I don't think that the phone system... I mean, communication is obviously possible on an immediate basis in any event, but I don't think that an attorney can say to the court, you have to hold off the hearing because it is going to take us three days to get to New Hampshire.
I think that clients in making their choice of attorney can look to that factor, and I think an attorney representing a client involved in those sort of proceedings is presumably going to want to have an office in New Hampshire, or are going to want to have a relationship with somebody who has an office in New Hampshire.
Unidentified Justice: What about... I can hear the other side of the argument perhaps from you if you were representing the opposing party, saying that, look, I was in Los Angeles, but I am a member of the New Hampshire bar.
We got notice of this expedited hearing on a TRO on Tuesday.
We were told to show up by Wednesday.
I couldn't get any red eye flight.
I couldn't possibly get there until Thursday.
I was denied due process of law.
Now, a Los Angeles attorney who practices in New Hampshire can make that argument.
A Concord or Manchester attorney can't.
Jon Meyer: Well, Your Honor, two responses.
First, I don't believe that New Hampshire judges would be sympathetic to that contention.
But secondly, I think the likelihood is in terms of most out of state attorneys who want to practice in New Hampshire is, they are not going to come from California.
They are going to come from Massachusetts, from Vermont, and from Maine.
Those are the people who want to get into the New Hampshire bar, not people--
Unidentified Justice: Yes, but your answer to Justice O'Connor's question a while ago, the rule has to apply to everybody, and it can certainly address evils that aren't present in every single case or every single application.
Jon Meyer: --Your Honor, it is conceivable certainly that somebody from California would join the New Hampshire bar, but we don't think that that person, because he resides in California, can use that fact as an excuse for not being available for court appearances.
But the other point is that what really in our mind is critical in terms of where an attorneys' availability is not where he lives, but where he practices law, and if he lives in California and practices law in New Hampshire, we think he will be available in New Hampshire.
If he lives in New Hampshire and practices law in California, he is not likely to be available in New Hampshire.
Justice Sandra Day O'connor: Mr. Meyer, do you think that a state bar requirement that the person either live in the state or in an area immediately adjacent to it would survive scrutiny?
Jon Meyer: Your Honor, I think that that is more defensible than the New Hampshire rule, but I do not think that that would survive--
Justice Sandra Day O'connor: But would it survive scrutiny?
Jon Meyer: --I do not believe so, Your Honor.
I think that... again, I don't think the justifications that can be offered for that sort of rule, and it would depend on specifics, can meet the demanding standard that this Court has set up under Hicklin.
Justice Sandra Day O'connor: What about a state requirement charging out of state residents more tuition to go to a state university than in-state residents?
I suppose getting an education is a fundamental right as well.
Would charging out of state students more tuition or making entrance requirement more difficult for them at an in-state institution survive your kind of privileges and immunities analysis?
Jon Meyer: Your Honor, it is my interpretation of Martinez v. Bynam that that sort of requirement would survive, and I think there is an important difference.
Justice Sandra Day O'connor: Why?
Jon Meyer: Because that involves a state's use of its own very scarce financial resources, and I think the state has a... and what this Court has seen to be a compelling interest in providing that residents who through their own tax expenditures help fund this public university have first shot at attendance there.
So, I think that that really involves a legitimately substantial and important interest, and I think the difference with this case is that New Hampshire really is not ultimately able to establish that where you live makes much difference in terms of your ability to meet all the requirements and obligations of the New Hampshire bar.
Unidentified Justice: May I ask you a question about the record?
I notice the dissent started out by noting that the rule might serve the less than commendable purpose of insulating New Hampshire practitioners from out of state competition.
I am sure that doesn't really motivate this at all.
But is there anything in the record that suggests it might?
Jon Meyer: Excuse me, Your Honor.
I missed the last part.
Unidentified Justice: Is there anything in the record to provide a basis for the dissent's comment, or is that just speculation based on judicial notice?
Jon Meyer: Your Honor, there is nothing in the record, and I want to make it clear that we are not relying upon discriminatory intent, and we don't think we have to.
Under this Court's rulings, particularly in the commerce area, the discriminatory effect, if substantial, is sufficient, and that is the basis of our claim here, not the intention or lack of intention of the New Hampshire Supreme Court.
Unidentified Justice: I am still not quite clear how you answered my question.
There is nothing in the record?
Jon Meyer: No, Your Honor, there is nothing in the record.
I did want to briefly address the Griffiths case, because I think in many ways that is the closest case to this one, and New Hampshire has attempted to distinguish it, saying that it really... issues there involve the lawyer as a quasi-public officer, and this is different.
Well, I think if you look at the position of the state of Connecticut in the Griffiths case, and in particular if you look at the opinion of the Connecticut Supreme Court, they basically rely upon many of the same powers, in fact, all the same powers of attorneys, and the same functions of attorneys as is relied upon by the state of New Hampshire in this case.
And the significance of Griffiths is not its holding, because that involves a different standard of... a different constitutional provision.
The significance of Griffiths in our eyes is that the Court rejected the claim, Number One, that because their attorneys should be immune from constitutional review, and Number Two, that a different constitutional standard should be applied.
I think this Court has consistently recognized the importance of regulation of the legal profession, and the special interests that courts have in this area, but this Court has also consistently recognized that that discretion and that special interest is never sufficient ground for violating a constitutionally protected right.
And that the four state Supreme Courts which have considered in adversarial fashion whether a state residency requirement violates the privileges and immunities clause have all found that it does.
And we think that indicates at least for those courts that they do not see the imposition of federal constitutional values to the state courts as being an undue federal imposition.
Unidentified Justice: I suppose if a claim were made to them, whether they saw it as an undue imposition or not, if they felt that the result required was required by a decision of this Court, they would be obligated to reach that conclusion, whether they were happy with it or not.
Jon Meyer: Yes, Your Honor, but they have not taken the position New Hampshire has, that simply imposing... that the New Hampshire... that the state... the federal... New Hampshire's position is in fact that the federal standard shouldn't apply, and the state courts that have looked at this, and I am referring to Massachusetts, New Jersey... New York, West Virginia, and Alaska, have all said that this Court's standards in Hicklin should apply, even in the area of state regulation of the bar.
And this Court has repeatedly recognized that among all the privileges and immunities, the most fundamental and the most central really relate to occupations, and I think it would be very anomalous should an exception be made or should a lower standard of review be applied in this area.
The justification in addition to the others that is relied upon by New Hampshire is knowledge of local rules, but we think they have entirely failed to demonstrate that this... out of state attorneys are in any way peculiarly deficient in this area.
All applicants to the New Hampshire bar must take and pass an examination on New Hampshire law.
They must also take a practical skills course after admission.
Finally, under the New Hampshire Code of Professional Responsibility, they are all obligated to maintain and improve their knowledge of the law.
Unidentified Justice: Mr. Meyer, you practice where, in Manchester?
Jon Meyer: Yes, Your Honor.
Unidentified Justice: How do attorneys in Manchester first find out about decisions of the Supreme Court of New Hampshire?
Jon Meyer: Your Honor, they are generally sent to us by mail.
Unidentified Justice: Advance sheets?
Jon Meyer: Yes.
Unidentified Justice: What, seven or eight months later?
Jon Meyer: Well, Your Honor, there are two services.
You can get in effect the same week service, or you can get a same month service.
Unidentified Justice: Do you also read about them often for the first time in the Manchester newspaper?
Jon Meyer: Well, Your Honor, I think in Manchester it is very difficult to rely upon what you read in the newspapers.
Unidentified Justice: How about Concord?
Jon Meyer: Your Honor, there are frequently accounts of decisions in the New Hampshire newspapers, but I don't think that they are a reliable or necessary means of getting that information, and that if you as an attorney feel--
Unidentified Justice: They would be helpful, though, wouldn't they?
Jon Meyer: --Well, not, Your Honor, if you decide to subscribe to the more advanced slip sheet service.
You receive it at approximately the same time the newspapers would.
Unidentified Justice: Do you have any idea what percentage of the attorneys in New Hampshire subscribe to the slip sheet service?
Jon Meyer: No, I don't, Your Honor.
But if... I want to emphasize that we believe there are adequately in place adequate protections of attorney knowledge of local rules and procedures, and in fact lawyers are tested on it, but if they are not sufficient, then the state has open to it numerous other means of assuring that knowledge.
For example, requiring continuing legal education.
For example, requiring a linkage between less and more experienced attorneys.
And we think that the need to exclude all out of staters is both unconnected and too broad.
Now, there is also a concern, a justification raised about concern about your reputation in the legal community.
But we think that what counts is not the legal community... is not the community you live in, but the legal community you practice in.
And if an attorney practices in New Hampshire, that should be more than adequate assurance that he is concerned about his reputation in the state.
And if he doesn't practice in New Hampshire, you don't really care.
But I would also like to point out that for lawyers who practice in more than one jurisdiction, under the New Hampshire Supreme Court rules there is a requirement that anybody suspended or disbarred, that that be sent to all of the jurisdictions where the attorney practices.
So that would surely provide, in our opinion, a substantial incentive for any attorney to conform to the opinions of his New Hampshire peers.
Thank you, Your Honors.
Chief Justice Warren E. Burger: Very well.
Do you have anything further, Mr. Gross?
Martin I. Gross: No, Your Honor.
Chief Justice Warren E. Burger: Very well, the case is submitted.
Thank you, gentlemen.