# Motion to Dismiss — Chen v. Supreme Court of New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 933

## Text

NO. 80-1738 uitee- 3 cprama Coun, U.S.

N }L J, D

MAY 21 1981
In THE ALEXANC! it STBEMAR,

Supreme Court of the Hniteh Statea’———

Ocroser Term, 1980

LESLIE ANN CHEN,
Appellant,

Vv.

SUPREME COURT OF NEW JERSEY,
Appellee.

On Appeal from the Supreme Court of New Jersey

—

MOTION OF APPELLEE SUPREME COURT OF
NEW JERSEY TO DISMISS

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stantial contacts with the State.* Thus, while persons
such as appellant have demonstrated through the admis-
sions process a threshold knowledge of New Jersey law,
their non-residency and insubstantial professional presence
in the State does not guarantee or suggest any future
commitment to continue to keep abreast of developments
in New Jersey law and practice. See Brown v. Supreme
Court of Virginia, supra, 359 F.Supp. at 561. To the
contrary, however, the Supreme Court of New Jersey
could presume that those residents of the State, although
practicing in other states, would be exposed and would
maintain a greater familiarity with developments in State
law and practice. Similarly, it would follow that the
courts’ and clients’ opportunity and ability to contact
personally lawyers residing in New Jersey would be greater
than those attorneys such as appellants whose presence
in the State is unpredictable if not non-existent. More-
over, it could reasonably be determined that

“Tt]he high ethical standards of an attorney can best
be maintained after practice begins if all members
of the bar have a stake in the community. Lawyers
are frequently leaders in the community and a resi-
dent attorney will have a continuing interest in the

*In adopting the “principal office for the practice of law” re-
quirements for non-domiciliaries, the Supreme Court of New Jer-
sey obviously intended to employ a flexible test to evaluate the
extent and adequacy of the non-domiciliary’s contact with New
Jersey. The liberality of the Court’s interpretation of this require-
ment however is unknown. The lack of any State court applica-
tion of the rule to a particular fact pattern to guide this Court
is compounded by the absence herein of any facts regarding the
extent of appellant’s professional contact with the New Jersey
courts or residents. What is presented is merely appellant’s con-
clusions that she maintains a “bona fide” but not “principal office”
in the State.

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success of local society and the quality of community
life by reason of the fact that his family generally
resides in the area. Moreover, the residence rein-
forces the attorney’s interest in his reputation, ...
[t]here are attorneys admitted to practice who some-
times are subject to rather dubious ethical acts, and a
resident attorney may be confronted with informal
community sanctions which may be effective even
though formal sanctions are not taken. While it is
acknowledged that an attorney may reside and work
in separate locales within the state, the vast majority
of the attorneys are an integral part of the commu-
nity wherein they maintain an office. Brown v. Su-
preme Court of Virginia, supra, 359 F.Supp. at 561.

A substantial nexus therefore exists between the compe-
tency and responsibility of a bar and the principal legal
office requirement imposed as a condition of plenary ad-
mission of nonresidents to the New Jersey bar.

The State’s broad discretion in regulating the legal pro-
fession necessarily extends to existing problems or con-
cerns or those it believes likely to result. See Jn re Primus,
436 U.S. 412, 438-439 (1978). Similarly, the propriety of
its regulation of the legal profession in order to protect
the public interest must be measured by the overall appli-
cation and not individual inequalities resulting from the
adopted classification. See Martin v. Walton, supra. Since
the challenged New Jersey rule draws reasonable distine-
tions among classes of attorneys with differing contacts
with the State and advances substantial legitimate inter-
ests of the State in creation of a competent and responsi-
ble bar, appellant’s equal protection challenge must be
viewed as without merit.

Nor, as appellant maintains, does the rule effect an im-
permissible burden on interstate commerce. It is, of course,

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firmly established that notwithstanding the affirmative
grant of authority to Congress as to interstate commerce,
the states retain “broad power” to legislate in matters of
local concern pursuant to reserved Tenth Amendment
powers even if interstate commerce is incidentally and
significantly affected. See e.g. H.P. Hood & Sons v. Dum-
mond, 336 U.S. 525, 531-532 (1949). As stated in Prke v.
Bruce Church, 397 U.S. 187, 142 (1970) and reaffirmed in
Hughes v. Oklahoma, 441 U.S. 322, 331 (1979), “Where the
challenged law regulates evenhandedly to effectuate a legi-
timate local public interest, and its effects on interstate
commerce are only incidental it will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits ...” Here, the Su-
preme Court of New Jersey’s bar admission rules are uni-
formly applicable to all applicants. Both New Jersey resi-
dents and out-of-state applicants once they have satisfied
bar examination and character requirements are presented
with identical alternatives, either: 1) maintain or establish
residency and thereafter establish a bona fide law office in
New Jersey; or 2) if domicile in New Jersey will not be
maintained or established, establish a principal law office
in the State. And as noted previously, the underlying basis
for the requirement—substantial contact in the State—is
obviously a legitimate goal to require of the State’s attor-
neys. Consequently, even assuming that the requirement as
applied to attorneys who chose to reside out of state im-
poses some burden upon interstate commerce that burden
may not be viewed as excessive nor without resulting sub-
stantial benefit to legitimate State concerns. Appellant’s
claims of undue burden upon interstate commerce must
therefore fail.

In sum, the Court’s review of this appeal is unwarranted
prior to completion of pending proceedings before the Su-
preme Court of New Jersey where the constitutionality

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and desirability of continued enforcement of the challenged
rule are likely to be considered. Additionally, since the
federal constitutional questions raised herein are without
substantial merit or otherwise improperly raised in the
first instance herein, the appeal should be dismissed.

CONCLUSION

For the above stated reasons, this appeal should be
dismissed as the constitutional challenge should not be
considered by the Court in advance of pending State
court proceedings or alternatively because the consti-
tutional questions presented lack of sufficient merit to
warrant plenary review. Additionally, this Court lacks
jurisdiction to consider the contention as to violation
of the Privileges and Immunities Clause of the Four-
teenth Amendment since that argument was not properly
raised or expressly passed upon below.

Respectfully submitted,

James R. Zazzat,
Attorney General of New Jersey,
Attorney for Appellee, Supreme Court
of New Jersey,
By: Anprea M. Si_kowrTz,
Deputy Attorney General.

[ApPenpices Fottow]

>

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APPENDIX A

New Jersey Supreme Court Rules 1:12-1 and 1:21

SupreME Court Rutes 1:12-1
(1968)

Cuapter V. Practice or Law, ArtoRNEYS AND COUNSELLORS;
CERTIFICATES OF ADMISSION

Rue 1:12. Pracrice or Law; ATrorNEYsS AND COUNSELLORS

1:12-1. Practice of Law; Appearances in Court

(a) No person shall practice law in this State, except
as provided in paragraph (c) of this rule, unless

(1) he has been admitted to practice as an attorney at
law of this State and is in good standing; and

(2) he is domiciled in this State; and

(3) he has fulfilled the requirements of Rule 1:20-7 and
has been issued a certificate of plenary admission to the
bar.

(b) No attorney admitted to practice in this State shall
permit another person to practice in this State in his
name or as his partner, employee or associate unless such
other person satisfies the requirements of paragraph (a)
of this rule or is his duly registered law clerk practicing
pursuant to Rule 1:12-8A.

(c) No person shall be permitted to appear to prosecute
or defend an action in any court of this State unless:

(1) he satisfies the requirements of paragraph (a) of
this rule, or

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2a
Appendix A

(2) he is a party to the action, or is the guardian of a
party to the action; or

(3) he has been admitted to speak, pro hac vice, pursu-
ant to Rule 1:12-8; or

(4) he is a law clerk, law school student or law school
graduate practicing within the limits prescribed by Rule
1:12-8A.

(d) Any person appearing in any action shall be under
the control of the court in which he appears.

(e) A corporation shall not practice law in this State,
nor shall it appear or file any paper in any cause in any
court of this State except through an attorney authorized
by paragraph (a) of this rule to practice in this State.

(f) The fact that an agent or employee of an individual,
or an officer, trustee, director, agent or employee of a cor-
poration shall be an attorney authorized to practice in this
State shall not be held to entitle said individual or cor-
poration to do any act prohibited by these rules.

Note: Effective September 9, 1953; paragraph (a) amended
June 28, 1954 to be effective September 8, 1954; amended May
11, 1959 and July 20, 1959 to be effective September 9, 1959;
paragraph (c) amended August 13, 1964 to be effective Septem-
ber 9, 1964. Formerly Rule 1:8-21.

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3a
Appendix A
Cuaprer IIT. Practice or Law anp ApMmission TO PRACTICE
Rue 1:21. Practice or Law (1969)
1:21-1., Who May Practice; Appearance in Cowrt

(a) Qualifications. No person shall practice law in this
State unless he is an attorney, holding a plenary license to
practice in this State, is in good standing, and is either
domiciled in this State or maintains in this State his prin-
cipal office for the practice of law; provided, however, that
a person shall be permitted to appear and prosecute or
defend an action in any court of this State if he (1) isa
real party in interest to the action or the guardian of the
party; or (2) has been admitted to speak pro hac vice pur-
suant to R. 1:21-2; or (3) is an attorney holding a certi-
ficate of limited admission, a law clerk or a law student or
law graduate practicing within the limits of R. 1:21-3. No
attorney authorized to practice in this State shall permit
another person to practice in this State in his name or as
his partner, employee or associate unless such other person
satisfies the requirements of this rule.

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4a

APPENDIX B

News Release, dated May 15, 1980

ADMINISTRATIVE OFFICE OF THE CoURTS
Strate oF New JERSEY

Robert D. Lipscher
Administrative Director

of the Courts
Judicial Information Services

State House Annex
Trenton
New Jersey
08625
609 292-9580

May 15, 1980
For IMMEDIATE RELEASE

Chief Justice Rebert N. Wilentz announced today that
the Supreme Court would shortly name a Committee to
Evaluate Bar Admission Requirements. The Chief Justice
indicated that, although the Board of Bar Examiners had
already begun a study of the bar examination based on the
February 1979 examination as part of the Board’s periodic
assessment of the process, the Court’s concern over the de-
clining pass rate, along with the public comments gener-
ated by the results of the July 1979 bar examination, sug-
gested that an in-depth analysis of the entire bar examina-
tion procedure be conducted. Members of the Committee
will include former and present members of the Board of
Bar Examiners, together with members of the bar and
others. |

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da
Appendix B

The basic task of the Committee will be to determine
whether the present bar examination procedures adequate-
ly fulfill their dual goals of assuring that only those quali-
fied to practice law pass the bar examination and, at the
same time, that none who are indeed qualified fail. The
Committee will be asked to recommend any changes it
deems desirable in the examination and related procedures.

The Chief Justice said:

“The Supreme Court has noted recent comments made
about the decline in the percentage of those who pass the
bar. Those comments suggest a deep concern as to whether
the bar examination is properly fulfilling its role in the
admission process or whether it is unjustifiably prevent-
ing some qualified candidates from becoming lawyers. We
share those concerns. Further, we agree that the matter
needs thorough study. For that purpose and in the exer-
cise of our constitutional responsibility over admissions
to the bar, the Court will soon appoint a Committee to
examine every aspect of the bar admission process includ-
ing some of its underlying assumptions.

“Tn a general sense, the most important function of this
Committee will be to determine whether the examination
as presently designed provides an acceptable standard for
determining who shall, and who shall not, be admitted to
the practice of law. More specifically, the essay portion
of the examination will be reviewed to determine, for ex-
ample, whether it is too complex, as some have asserted,
or whether the number. of questions should be changed.
The Multi-State Bar Examination (MBE), a uniform mul-
tiple choice examination administered throughout the coun-
try, will be evaluated. A question to be addressed relating
to the MBE is whether the automatic passing grade for
New Jersey is too high.

A

6a
Appendix B

“The Committee will be asked to define as precisely as
possible—and the Court realizes this is most difficult—the
standard of competence which the examination ought to
measure and the extent to which it achieves that purpose.
In all of these matters the Committee will be asked to look
at the experience of other states, especially those which
have recently studied admission procedures.

“We will also ask the Committee to express its views on
the concern expressed by some that perhaps the bar ex-
amination is unjustifiably limiting the number of attorneys
in New Jersey, contributing both to the unavailability and
high cost of legal services. This is obviously an extremely
complicated question involving, as it does, the relation-
ship between appropriate standards for admission to the
bar and the number of attorneys available to the public.
The Committee will have to consider and report to the
Court on such.fundamental issues as whether the need,
if any, for more attorneys is so pressing that the stand-
ards for admission should be lowered and whether such
a lowering of standards will necessarily result in the ad-
mission of attorneys not otherwise qualified to practice in
this State.

“The Committee will also be asked to look into the train-
ing of bar candidates to determine whether changes in
training, in and out of law school, are called for, either
separate from, or in conjunction with, changes in the bar
examination. Furthermore, the Committee will report on
other matters affecting the number of attorneys admitted,
such as post-admission residency requirements, the recog-
nition to be given admission or examination in other states,
and the like. In connection with all of the foregoing, the
Committee will be able to retain outside consultants to as-
sist it, where appropriate.

°»

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Ta
Appendiz B

“The Court has examined at length many of the questions
raised subsequent to the announcement of the results of
the July 1979 bar examination. We have received a great
deal of information from the Board of Bar Examiners and
have met with them as well as with others, including for-
mer bar examiners, deans of law schools, the Attorney
General and other individuals, all of whom are deeply in-
terested in these matters. Based on all of those meetings,
as well as the analysis of the information that has been
provided to the Court through its Clerk’s Office and the
Administrative Office of the Courts, the Court is convinced
that there is not only sufficient cause but a real necessity
to undertake the kind of study about to be initiated.

“There is absolutely no doubt on the part of the Court
that the present Board of Bar Examiners has conscien-
tiously upheld the high standards that have characterized
the New Jersey Board for many years. It has been one
of the most highly regarded Boards in the country. It is
clear to the Court that the Board has consciously continued
its efforts to design and grade the examination on a totally
objective basis without regard to any arbitrary pass rate.
The Board’s sole motivation has, in fact, been to ensure
that no one will be allowed to practice law in New Jersey
who is not qualified to do so.

“Accordingly, the Court’s decision to form this Commit-
tee cannot be taken as any implication of lack of confidence
in this extremely competent, hard-working Board. Rather,
it reflects our belief that no institution, no matter how
well intentioned, is perfect and that when legitimate ques-
tions are raised, they should be investigated and answered
with a completely open mind.”

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APPENDIX C

Notice of Petition to the Supreme Court of New Jersey

SUPREME COURT OF NEW JERSEY
Docket No. 18,361

Crvm AcTION

hp.
—_

JAY MARK SACKMAN,
Petitioner,
v.

SUPREME COURT OF NEW JERSEY, et al.,

Respondents.

To: James R, Zazzaui
Attorney General of New Jersey
Attorney for Respondents —

Attention: Ricnarp M, HiucHan
Deputy Attorney General
36 W. State Street
Trenton, New Jersey 08625

Sir:

NoTICE IS HEREBY GIVEN that Petitioner, Jay Mark Sack-
man, has filed a Petition with the Supreme Court of New
Jersey to review the constitutionality of R. 1:21-1(a) and
for such other relief as is set forth in such Petition, a copy

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9a
Appendix C

of which was filed and was served upon you on March 18,
1981.

Ciapp & EIsENBERG
A Professional Corporation
Attorney for Petitioner
By: Stuart L. PacomMan

Dated: April 1, 1981.

Of Counsel:

Pryor, Cashman, Sherman & Flynn
New York, New York

CERTIFICATE OF SERVICE

I hereby certify that I caused a true copy of the within
Notice of Petition to be sent to Richard M. Hluchan, Deputy
Attorney General, Attorney for Respondents, addressed
to 36 West State Street, Trenton, New Jersey 08625, by
first class United States prepaid mail on April 1, 1981.

Sruart L. PAcHMAN

Dated: April 1, 1981.

10a

EX1LJBIT D

Response to Petition Filed in the Supreme Court of
New Jersey

292-8576

April 24, 1981
Stephen W. Townsend, Esq.
Clerk, Supreme Court of New Jersey
State House Annex
Trenton, New Jersey 08625

Re: Sackman v. Supreme Court of New Jersey
Docket No. 18,361

Dear Mr. Townsend:

Pursuant to R. 2:6-2(b), please accept this response to
the “Petition to Declare R. 1:21-1(a) Unconstitutional and
Unenforceable and for its Rescission 6r Modification” filed
in this matter. Because this matter involves a constitu-
tional callenge to a rule adopted by the Supreme Court
of New Jersey, the Attorney General agrees that it is
appropriate for the Court to directly hear the petitioner’s
claim. Accordingly, it is submitted that the Court should
grant certification of this matter and set a briefing sched-
ule which will allow the parties adequate time to set forth
their positions on the merits. See In Re LiVolsi, N.J.
—— (1981).

It is my understanding that a committee chaired by Jus-
tice Jacobs is currently considering proposals to amend
various Court rules, including R. 1:21-1(a), and that the
committee’s report will be filed by the end of July. Since
the Court and the parties would obviously wish to have

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lla
Appendix D

the benefit of this report in considering this matter, it
would appear reasonable to consider the date of avail-
ability of the anticipated report in fixing a briefing schedule.

JAMES R. Zazzavt

Attorney General of New Jersey
Richard M. Hluchan

Deputy Attorney General

RMH :mmb
ec: Stuart L. Pachman, Esq.

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12a

APPENDIX E

Excerpt from Interim Report of the Supreme Court
Committee to Evaluate Bar Admission Requirements,
dated May 6, 1981 (pp 69-72)

E. Residency Requirements

23. R. 1:21-1(a) Srares tHat “[N]o Person SHarti Prac-
TICE LAW IN THIS STATE UNLESS HE IS... ErrHer Domt-
CILED AND Maintains A Bona Fine Office For THE PRac-
Tice oF Law IN THIS Stave or, 1F Nor DomiIciLED IN THIS
Strate, MAINTAINS IN THIS State His PrincrpaL OFFICE FOR
THE Practice oF Law.” THe Basic Resmency anp OFFICE
REQUIREMENTS Set FortrH 1n TH1is Rute SHOULD BE RE-
TAINED.

a. R. 1:21-1 SHovuLtp BE AMENDED TO INCLUDE THE FOL-
LOWING DEFINITION OF “Bona FIDE OFFICE”’:

Bona F'mz Orrice. For THE Purpose oF THIS RULE,
A Bona Five Orrice is A PLACE WHERE THE ATTOR-
NEY OR A RESPONSIBLE PERSON ACTING ON HIS BEHALF
CAN B \.EACHED IN PERSON AND BY TELEPHONE Dvr-
ina Normau Business Hours. A Bona Five OFFICE
1s More THAN A Mart Drop, A SumMerR Home WHiIcH
1s UnatrenpeED Durinc A SuBsTANTIAL PorTION OF
THE YEAR, OR AN ANSWERING SERVICE UNRELATED TO
A Pitace WHERE Business 18s CoNDUCTED.

Commentary: Currently, all but 11 states and the District
of Columbia have some type of residency requirement as
a condition to practicing in their jurisdictions. The Com-
mittee believes that New Jersey’s requirement of either a
domicile and bona fide law office or a principal office for
of Law Examiners, 42 F.Supp. 1082 (D. Md. 1979); Suff-

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13a
Appendix E

the practice of law, as set forth in /. 1:21-1(a), should be
retained. These requirements are reasonable means to en-
sure that attorneys practicing in New Jersey remain ac-
countable to authorities in this State, and readily accessible
to opposing counsel and to their clients. The rules also
tend to ensure that attorneys who practice in New Jersey
are familiar with local custom as well as recent develop-
ments in local law.

Recent cases have held that requiring a candidate to
maintain a residence in a state for a period of time prior
to admission to the state’s bar is unconstitutional. Gordon
v. Committee on Character and Fitness, 48 N.Y .2d 266, 397
N.E.2d 1309 (1979) (rule requiring that applicant be a resi-
dent for six months immediately preceding the submission
of his application for admission to practice violates privi-
leges and immunities clause of U.S. Const., Art. IV, §2, el.
1); Sheley v. Alaska Bar Assn., 620 P.2d 640 (Alaska Su-
preme Court 1980) (rule requiring applicants to be domi-
ciled in state for at least 30 days prior to taking bar ex-
amination violates privileges and immunities clause of U.S.
Const., Art. IV, §2, el. 1); contra, Golden v. State Board
of Law Examiners, 452 F.Supp. 1082 (D. Md. 1979) ; Suff-
ling v. Bondurant, 335 F.Supp. 257 (D. N.M. 1972), aff’d
mem. sub nom., Rose v. Bondurant, 409 U.S. 1020 (1972).
Unlike the rules which were held unconstitutional, New
Jersey’s rules do not require residency at all and do not
force a candidate residing in another state to move to
New Jersey before being able to practice in this State.
The rules are reasonable means to achieve important ob-
jectives and should be able to withstand constitutional
challenge.

a. The Committee believes that the “bona fide office” re-
quirement in R. 1:21-1 is subject to abuse, and that certain

“her,

l4a
Appendia E

minimal standards for satisfying the requirement should be
made part of the rule. The proposed amendment sub-
mitted by the State Bar Association to the Chief Justice
would be suitable for this purpose.

b. The phrase “his principal office” implies that an attor-
ney can only have one principal office. In a situation where
an attorney divides his time and energy between offices
in two states, deciding which is his principal office can lead
to a rather arbitrary determination.

The number of hours he spends at each office, the num-
ber ef clients serviced at each office and the amount of in-
come derived from each office could be used as guidelines
in making this determination. However, an office which
satisfies one or all of these criteria might be no better
equipped to handle a New Jersey case than an office which
technically does nut meet such guidelines.

Instead, the Committee recommends that the principal
office rule be applied flexibly so that an attorney who prac-
tices out of offices in New Jersey and in another state be
deemed to have satisfied the requirement, as long as his
practice in New Jercey is not subordinated to his practice
in another state.

The Committee considered recommending the modifica-
tion of the principal office requirement to a substantial
office requirement. However, a substantial office could be
interpreted as a place where an attorney spends as little
as several days a month. Such a practice would be clearly
secondary to the attorney’s out-of-state practice, and might
not adequately serve the policies previously discussed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1624%3A2. Public record. Not legal advice.