Opposition Brief — FitzPatrick v. DiMartino

84°10

Supreme Court of the Unite

Ocroper Term, 1984

HENRY B. FITZPATRICK, JR.,

Petitioner,

vs.

LV. DiMARTINO, A.J.S.C., ete., and

THE SUPERIOR COURT, LAW DIVISION, etc.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

UO

Inwos L. Kimme man,

Attorney General of New Jersey,

Attorney for Respondents, 1.V. DiMartino

A.J S.C., etc., and The Superior Court,

Law Dwision, etc.

Richard J. Hughes Justice Complex

CN 112,

Trenton, New Jersey 08625.

(201) 648-4730

Micmazt R. Corz,

First Assistant Attorney General

Of Counsel.

Awprea M. Sr_xowrrz

— Attorney General,

the Brief.

Adame Press Corp., 1166 Raymond Boulevard, Newark, New Jersey 07102—(201) 625-8611

TABLE OF CONTENTS

ITA Oe ee TATE ee I

Argument:

Petitioner’s challenge to the State Court ruling deny-

ing his motion for pro hac vice admission as plain-

tiff’s counsel in a medical malpractice action fails

to state any viable claim under the Privileges and

Immunities or Equal Protection Clauses and other-

wise presents substantial jurisdictional deficencies

so as to mitigate against plenary review of the

IN siiestesesidihtehialieiihccecelsicenlcasiatidarcseneemnasdnindehthdesninpictiaimdeinin

RCE RO EO BI ce RCE

ii TABLE OF AUTHORITIES

PAGE

Table of Authorities

Cases Cited

Adams v. Adams, 53 N.J. Super. 424, 147 A.2d 568

(App. Div. 1959) .......... intlaalinihedcailaeiaainsmspdaiinntinis 12

American Trial Lawyers v. New Jersey Supreme

Court, 66 N.J. 258, 300 A.2d 350 (1974) .................... 2

Atlantic Line R. Co. v. Engineers, 398 U.S. 281

CTDTD) ncccsncsssccuinisinnsombaenensaedmeaadanaiiaen 12

Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S.

FO CRICG) icisinsssctentoniatieiasaieiinaa ’ 11

Bradwell v. The State, 16 Wall. 130 (1872) ~.......0... 13

Brown v. Supreme Court of Virginia, 359 F. Supp.

549 (E.D. Va.) aff'd 414 U.S. 1034 (1973) 2. 13

Burlington County Internal Medicine Association,

P.A. v. Amer. Medicorp, 168 N.J. Super. 382, 403

B.3d 43 (CRAG, BIRVs BOD ceckcessdliekceeedeerien 6

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) .... 12

Cox Broadcasting Corp. v. Cohn, 429 U.S. 469 (1975) 12

Dickinson v. Petroleum Conversion Corp., 338 U.S.

507 (1950) .......... 12

District of Columbia Court of Appeals v. Feldman,

460 UB. GER CHRD scsccsccsntccontetipiestatenadiaieniantiiieniais 11,12

Ethics Advisory Comm. Op. 475, 89 N.J. 74, 432 A.2d

59 (1981) app. dis. sub nom Jacoby & Meyers v.

Supreme Court of New Jersey, 459 U.S. 962 (1982) 11

Konigsberg v. State Bar of California, 353 U.S. 252

| ene. - “a 14

TABLE OF AUTHORITIES iii

PAGE

Leis v. Flynt, 439 U.S. 438 (1979) ................-cceccecceeceees 8, 9, 13

LiVolsi, In the Matter of the Application of, 85 N.J.

| Et RSAC ene 2

Lockwood, In re, 154 U.S. 116 (1894) —2000 13

Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (S. Ct.

1960) app. dis. sub nom. Martin v. Walton, 368 U.S.

SSC RACES ee ee 14, 15

Middlesex Ethics Comm. v. Garden State Bar Assoc.,

__ A EE NO ER ee OTTER 13

Norfolk and Western R. Co. v. Beatty, 400 F. Supp.

234 (S.D. Ill.) aff’d 423 U.S. 1009 (1975) -.....22.... 13, 15

Piper v. Supreme Court of New Hampshire, 723 F.2d

110 (1st Cir. 1983) prob. juris. noted —— U.S.

fener II CR UE oecincvcnseesitieensivasecentenowvsteereceinene 9, 10, 16

Ray v. Robinson, 640 F.2d 474 (8rd Cir. 1981) -........... 12

Sackman, In re, 90 N.J. 521, 448 A.2d 1014 (1982)... 3, 11

Silverman v. Browning, 414 F. Supp. 80 (D. Conn),

I RR, TE CIN icienintessisivneensnsciioeneoonsnarenocerecs 13

State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966) -...... 2

Toomer v. Witsell, 334 U.S. 385 (1948) _202.. 10, 11, 16

United Building and Construction Trades v. Mayor,

— US. AIRES Se 10

Zobel v. Williams, 457 U.S. 55 (1982) ........2...2....-...2000220 11

iv TABLE OF AUTHORITIES

United States Constitution Cited

AS Fe ee aaa a een

I Oe ek

Fourteenth Amendment -2000....2...2..cceeeeeee eee eceeeeeereeeeee

Equal Protection Clause ....................-:.s00-0+-+-

New Jersey Constitution Cited

Article VI, Section I], Paragraph 8 ....................

Statutes Cited

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ee ae eee IY RIPE ND eo dcticencsscenceenccnion

ee Te NN SED ciiteticsiatncacbic aaoucnncnn

New Jersey Court Rules Cited

16-200) TIS. Wes

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eas

Se I aici scieescessccdencstosceutonst la

R. 1:21-2(a)

BR. 1:21-2(a) (4) (i)- (Vi) ccocceeccccceccsnessceceesssseceeesesneees

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PAGE

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TABLE OF AUTHORITIES Vv

PAGE

Rules Cited

Federal Rules of Civil Procedure:

ff a eee Lene eee IRD oy 8

WOOGIE TERI ccksistnctnaa daa

NO. 84-

IN THE

Supreme Court of the United States

Ocroser TERM, 1984

i>

—

HENRY B. FITZPATRICK, JR.,

Petitioner,

VS.

L.V. DIMARTINO, A.J.S.C., ete., and

THE SUPERIOR COURT, LAW DIVISION, ete.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

- =

—

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Counter-Siatement of the Case

With the adoption of the 1947 State Constitution, the

existing decentralized regulation of the legal profession

in New Jersey was revamped to establish the Supreme

-

Court of New Jersey, the State’s highest appellate Court,

as the exclusive regulator of the practice of law in the

State.* Thus, Article VI, SII par. 3 of the New Jersey

Constitution provides that the Supreme Court of New

Jersey,

“shall make rules governing the administration of

all courts in the State and, subject to law, the prac-

tice and procedure in all such courts ... [and] shail

have jurisdiction over the admission to the practice

of law and the discipline of persons admitted.”

As consistently interpreted by the Supreme Court of New

Jersey, this constitutional provision empowers the Court

to establish and supervise the obligations and conditions

as to the practice of law from admission to disbarment

and in “every area in which unjust or unethical conduct

might afflict the public at the hands of those admitted by

the Court to the practice of law.” American Trial Lawyers

v. New Jersey Supreme Court, 66 N.J. 258, 264, 300 A.2d

350, 353 (1974). See also In the Matter of the Application

of Philip J. LiVolsi, 85 N.J. 576, 428 A.2d 1268 (1981),

State v. Rush, supra at 410, 217 A.2d at 447.

In the exercise of its constitutionally delegated powers,

the Supreme Court of New Jersey establishes the condi-

tions for the plenary licensure of attorneys in the State.

Prior to 1969, the rules promulgated by the Supreme Court

of New Jersey precluded admission to the State bar of

non-domiciliaries. Effective in 1969, however, the rule

was amended to allow for the admission of attorneys

ee ee es

* Prior to 1947, control over the admission of attorneys to the

practice was fragmented with the former Supreme Court recommend-

ing and the Governor approving the licensing and admission of

attorneys to practice in the State. State v. Rush,'46 N.J. 399, 411-

412, 217 A.2d 441, 447 (1966).

residing out of state who maintained a prineipal law office

in New Jersey. This provision was retained in a subse-

quent modification of the rule in 1978, requiring domicili-

aries, as a condition of licensure, to henceforth establish

a bona fide office in the State. See N.J. Ct. R. 1:21-1(a).

Effective August, 1982, the rule was again amended in

conformance with the Court’s decision in Jn re Sackman,

90 N.J. 521, 448 A.2d 1014 (1982) to eliminate the prin-

cipal-office requirement for non-domiciliary New Jersey

licensed lawyers and to require for both domiliciary and

non-domiliciary attorneys that they maintain a bona fide

office in the State. Accordingly, a non-domiciliary attor-

ney, who has satisfied all other requirements for licensure

is permitted to practice in the State provided that he

maintains a bona fide office in the State (as defined by

the Court Rule) and appoints the Clerk of the Supreme

Court as his agent for service of process. See N.J. Ct. R.

1:21-1(a).

The Court has also prescribed the conditions under which

attorneys, who have not satisfied the aforestated require-

ments, might seek pro hac vice admission in the state

courts. [ffective in 1948, the Court adopted rules permit-

ing unlicensed attorneys “of good standing” to be admitted

“at the discretion of the Court in which any cause is pend-

ing, pro hac vice,... provided. .. that all pleadings, briefs

and other papers filed with the Court shall be signed by

an attorney of record authorized to practice in this State,

who shall be responsible for them.” See former N.J. Ct.

R. 1:8-10(b) (1948) and former N.J. Ct. R. 1:12-2 (1953).

The rule was amended in 1969 to permit pro hac vice ap-

pearances by employees of out-of-state professional cor-

po.. ons authorized to practice law in their own states

and tu make elear that the New Jersey attorney of record

would be held accountable for the conduct of the lawyer

appearing pro hac vice. See NJ. Ct. R. 1:21-2 (1969).

4

The rule was further amended in April 1975 to acknowl-

edge that attorneys admitted to practice in New Jersey

but no longer authorized to vractice by reason of non-

residence and the failure to maintain principle offices for

the practice of law could seek admission pro hac vice under

the same terms as other attorneys. Consistent with the

1978 amendment of N.J. Ct. R. 1:21-1(a), N.J. Ct. R. 1:21-

2(a) was further amended effective January 10, 1979 to

permit pro hac vice admission of resident attorneys who

failed to maintain a bona fide office in the State. Most re-

cently in September 1983 and February 1984, the rule

has been amended by the Court to allow for resident or

non-resident attorneys alike, who do not maintain a bona

fide office for the practice of law within the State, as de-

fined by N.J. Ct. R. 1:21-l(a), to seek permission to

appear in a pending State Court matter “at the discre-

tion of the Court” in which such matter is pending. In

applying for pro hac vice admission those attorneys,

whether domiciliaries or non-domiciliaries, must establish,

inter alia, by affidavit or certification that good cause”

exists for the granting of the motion.

——

* The rule contemplztes that good cause may be shown, by any

of the following:

“(i) the cause in which he seeks admission involves a

complex field of law in which he is a specialist, or

(ii) there has been an attorney-client relationshp with

the client for an extended period of time, or

(iii) there is a lack of local counsel with adequate ex-

pertise in the field involved, or

(iv) the cause presents questions of law involving the

law of the foreign jurisdiction in which the applicant is

licensed, or

(l‘ootnote continued on following page}

By the instant petition for certiorari, Henry B. Fitz-

patrick, Jr., an attorney “‘censed by the State of Penn-

sylvania, but not authorized to practice law in the State

of New Jersey, seeks review of the Order of the United

States Court of Appeals for the Third Cireuit, affirming

the District Court’s dismissal of Fitzpatrick’s complaint

filed pursuant to 42 U.S.C. $1983 against the Honorable

1.V. DiMartino, Assignment Judge of the Superior Court

of New Jersey, in response to Judge DiMartino’s denial

of Fitzpatrick’s motion for pro hac vice admission in a

State medical malpractice action (Coleman vy. Gorin, Docket

No. L-441 36-81). As detailed in the petition for certio-

rari, Fitzpatrick sought pro hac vice admission in this

matter on the basis of his efforts in obtaining medical

treatment for the plaintiff Coleman’s injuries, which were

the subject of the malpractice action (App. at Ila, 12a,

Yia). Following a hearing on the motion, Judge DiMar-

tino on May 21, 1982, rendered an oral opinion in which

he concluded that Fitzpatrick had failed to establish any

gocd cause for appointment of out-of-state counsel by

reason of: 1) the complexity of the case for which he sought

permission to joim as counsel (App. at la). 2) the fact

of a “long-held attorney-client relationship” (App. at 14a);

3) a lack of local counsel with expertise in the field in-

volved (App. at 14a); or 4) the need for extensive dis-

(lootnote continued from preceding page)

(v) there is need for extensive discovery or other pro-

ceedings in the foreign jurisdiction in which the applicant

is licensed, or

(vi) such other reason as would present good cause for the

pro hac vice admission.”

[N.J. Ct. R. 1:21-2(a) (4) (i)-(vi) J.

covery in a jurisdiction at a great distance from New Jer-

sey (App. at l4a).”

On June 22, 1983, Coleman moved pursuant to N.J. Ct.

R. 2:2-4 for leave to appeal the April. 21, 1982 decision

of Judge DiMartino, which had been memorialized in an

order dated June 7, 1982. In his brief Coleman urged

inter alia, that the Court had abrogated “[t]he procedural

due process rights of plaintiff [Coleman] and Henry B.

Fitzpatrick, Jr... . by fail[ing] to reasonably or mean-

ingfully apply the standards for pro hac vice admission”

and had violated Fitzpatrick’s rights under the Privilege

and Immunities Clause of the United States Constitution.

In an order dated July 12, 1982, the motion for leave to

appeal was denied by the Appellate Division.** Thereafter,

* As of the date of this motion, R. 1:21-2 provided in pertinent

part that “[a]n attorney of any other jurisdiction of good standing

there, . .. may, at the discretion of the Court in which any matter

is pending, be permitted, pro hac vice, to speak in such matter

in the same manner as an attorney of this State who is domiciled

in and maintains a bona fide office for the practice of law in

this State or maintains in this State his prinicpal office for the

practice of law; ... provided, hov-ever, that all pleadings, briefs

and other papers filed with the Court shall be signed by an attorney

of record authorized to practice in this State, who shall be held

responsible for them and for the conduct of the cause and of the

admitted therein.” (emphasis supplied ).

The factors upon which Judge DiMartino based his determina-

tion were initially suggested in the Burlington County Internal

Medicine Association, PA. v. Amer. Medicorp, 168 N.J. Super.

382, 403 A.2d 43 (Chan. Div. 1979) decision and later incorporated

into the current Supreme Court Rule.

*#*N J. Ct. R. 2:2-4 provides in pertinent part that “. . . The

Appellate Division may grant leave to appeal from an interlocutory

rule of a court, in the interest of justice ” (emphasis added).

Compare N.J. Ct. R. 2:2-3(a)(1) (appeal as of right from final

judgments of the Superior Court trial divisions).

on or about July 28, 1982, Coleman filed with the Supreme

Court of New Jersey a Notice of Motion for Leave to

Appeal the Interlocutory Order of the Appellate Division

(Dad5 to Da60), in support of which Coleman filed a brief

raising the identical federal constitutional issues raised

before the Appellate Division. By order dated October

26, 1982, the motion was denied by the Supreme Court.*

No further review of this decision was sought from this

Court.

On June 3, 1983, Fitzpatrick filed a Complaint in the

United States District Court for the District of New

Jersey seeking a judgment declaring “(Judge Di Mar-

tino’s] refusal to permit his admission pro hac vice in the

absence of a specific finding that he is unfit or that sub-

stantial reasons exist which would justify his exclusion

constitutes [sic] a violation of his rights under Article

IV §2 of the United States Constitution and under the

Fourteenth Amendment to the United States Constitution”

and preliminary and permanent injunctive relief “enjoin-

ing the defendants from preventing his admission pro

hac vice...” (App. at 24a). A timely answer was filed

on August 18, 1983, asserting among the aflirmative de-

fenses the failure to state a cause of action and the court's

lack of jurisdiction pursuant to 28 U.S.C. $1257 to col-

aterally review the decisions of the New Jersey State

courts with regard to plaintiff's motion for pro hac vice

admission.

*N.J. Ct. R. 2:2-3(b) provides that “[a]ppeals may be taken

to the Supreme Court by its leave from interlocutory orders:

* * *

(b) of the Appellate Division when necessary to prevent irrepa-

rable injury;

* * *

Defendants subsequently moved for an order granting

summary judgment or in the alternative for dismissal

of the complaint pursuant to Fed. R. Civ. Proe. 12(b) (1)

or (6), based upon their primary contention that plain-

tiff’s claims were foreclosed by this Court’s ruling in

Leis v. Flynt, 489 U.S. 488 (1979). As well defendants

urged dismissal on the basis that the federal court action

constituted an impermissible collateral challenge to a

final State court decision thus depriving the Court of

subject matter jurisdiction pursuant to 28 U.S.C. $1257 (ce)

and was otherwise barred by the doctrine of res judicata.

In response thereto, plaintiff’s counsel advised the Court,

by letter dated December 12, 1983, that in view of Leis

v. Flynt, she “believed that defendants’ Motion should

be granted ...” and... did not intend to file a brief

in opposition thereto.” (App. at 5a). By order dated Janu-

ary 26, 1984, the Honorable John W. Bissell, U.S.D.C.J.,

granted defendants’ motion to dismiss pursuant to Fed.

R. Civ. Proce. 12(b) (6) (App. at 7a).

A Notice of Appeal to the United States Court of

Appea!'s for the Third Circuit was filed on February 18,

1984. In his brief filed with the Court, Fitzpatrick con-

ceded that the Leis opinion was “determinative” of all

of the constitutional issues presented by his complaint and

thus mandated affirmance of the District Court order.

(Brief and Appendix for Appellant, United States Court

of Appeals for the Third Circuit at p. 7). By Order dated

September 21, 1984, the United States Court of Appeals

for the Third Circuit affirmed the District Court judge-

ment (App. at la).

Summary of Argument

The writ sought here should be denied because, as peti-

tioner conceded below, the Leis v. Flynt, 489 U.S. 488

(1979) opinion is determinative of the constitutional claims

asserted herein. Furthermore, no subsequent rulings by

the Court alter the conclusion that the imposition of a

good cause showing for pro hac vice admission of. at-

tornevs, not authorized to practice in the State courts,

does not violate either the Privileges and Immunities or

the Equal Protection clauses of the United States Consti-

tution. Finally, a substantial question exists as to whether

the Federal District Court below erred in assuming juris-

diction over the complaint inasmuch as it seeks collateral

review of a final State court judgment.

ARGUMENT

Petitioner’s challenge to the State Court ruling deny-

ing his motion for pro hac vice admission as plaintiff’s

counsel in a medical malpractice action fails to state

any viable claim under the Privileges and Immunities

or Equal Protection Clauses and otherwise presents sub-

stantial jurisdictional deficiencies so as to mitigate

against plenary review of the Petition.

In his zeal to cast this petition in terms of a privileges

and immunities violation and thereby to entice the Court

to consider this matter in conjunction with Piper v. Su-

preme Court of New Ilampshire, 723 F.2d 110 (1st Cir.

1983) prob. juris. noted —— U.S. -—— (April 23, 1984),

petitioner ignores a fundamental element of a cause of

action under that constitutional provision. As a careful

reading of this Court’s opinions makes clear, Article IV

§2 of the United States Constitution is implicated solely

10

where a State or political subdivision thereof legislatively

establishes classifications which condition the exercise or

granting of a privilege upon State or other residency

grounds. United Building and Construction Trades v.

Mayor, USS. (1984). As noted in Toomer v.

Witsell, 334 U.S. 385, 395 (1948), “[t]he primary purpose

of the clause... was... to insure to a citizen of State A

who ventures into State B the same privileges which the

citizens of State B enjoy.” Manifestly, and notwithstand-

ing petitioner’s arguments to the contrary, the distine-

tions drawn in N.J. Ct. R. 1:21-2(a) are based not upon

State residency, but satisfaction of the requirements of

N.J. Ct. R. 1:21-1(a), regarding authorization for prac-

ticing law in the State of New Jersey. * e Piper v. Su-

preme Court of New Hampshire, supra, 723 F.2d at 115

n.o. Thus, an attorney, whether a domiciliary of New Jer-

sey or another State, who does not hold a plenary license

to practice in the State and/or who does not maintain a

bona fide office for the practice of law in New Jersey,

must, as a condition for appearance in the New Jersey

courts, establish good cause for admission pro hac vice

pursuant to N.J. Ct. R. 1:21-2(a). Petitioner’s sugges-

tion that invidious discrimination against out-of-state at-

torneys has been effected by application of the pro hac vice

rule is thus utterly frivolous.* Similarly, given the absence

* United Building and Construction Trades v. Mayor, supra, is

not to the contrary. In that matter this Court concluded that a

cause of action under the Privileges and Immuazities Clause was

stated where a challenged ordinance discriminated in favor of some

State residents, (residents of the City of Camden) notwithstanding

the fact that other State residents and non-residents were equally

disfavored. In contrast, the applicability of R. 1:21-2(a) rests

_ not upon any consideration of State or municipal residence but

(Iootnote continued on following page)

11

of any demonstration by petitioners of any distinction made

as between resident and non-resident attorneys in this con-

text, petitioner’s remaining equal protection challenge to

the State court action herein similarly must fail. Compare

Zobel v. Williams, 457 U.S. 55 (1982).* Review of the

decisions below is plainly unwarranted.

Denial of the petition for certiorari is compelled as well

by the significant issue, not addressed by the courts below,

of whether the federal district court, consistent with this

Court’s ruling in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983), could properly exercise

jurisdiction over the complaint. As the complaint and

(Footnote continued from preceding page)

authorization to practice in the State courts. As well, out-of-state

residents, unlike those in the Camden case, do have the ability to

seek modification of the Supreme Court of New Jersey’s rules

by the filing of a petition for review of the constitutionality or

continued desireability of a rule. Lihics Advisory Comin. Op. 475,

89 N.J. 74, 80-81, 432 A.2d 59 (1981) app. dis. sub nom Jacoby

& Meyers vy. Supreme Court of New Jersey, 459 U.S. 962 (1982).

See also In re Sackman, 90 N.J. 5321, 448 A.2d 1014 (19282).

They need ‘not therefore be “restricted to the uncertain remedies

afforded by diplomatic processes and official retaliation.” TY oovicr

v. Witsell, 334 U.S. 385, 395 (1948).

* The due process claim asserted in petitioner’s Federal District

Court Complaint is not presented in this petition. It should be

noted however that as in Leis v. I’lynt, 439 U.S. 438 (1979), the

pro hac vice court rule at issue herein does not create any pro-

tectable property interest which would mandate satisfaction ot

due process requirements upon denial of the motion. Nevertheless,

it is clear that unlike the procedural history presented in Leis v.

Flynt, supra, petitioner was afforded “as much due process” as

the Fourteenth Amendment would require: notice, an opporunits

to be heard and an explication of the basis for denial of the

claim. See Board of Curators, Univ. of Mo. v. Horownts, 435

U.S. 78 (1978). See also App. at 8a to 15a.

BEST AVAILABLE COPY

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ee

12

the question presented for review by this petition makes

evident, petitioner’s challenge herein is to a State trial

judge’s action (unaltered on appeal to the highest State

court) in denying his motion for pro hac vice admission.

Yet as the Feldman opinion reaffirmed, the federal trial

courts lack subject matter jarisdiction to review final State

court rulings pursuant to 28 U.S.C. ¢ 1257(c). See also

Atlantic Line R. Co. vy. Engineers, 398 U.S. 281, 296 (1970).

While petitioner’s attempt in the first instance to seek re-

view of the State trial court’s action based upon the identi-

‘al constitutional claims asserted herein was through the

filing of interlocutory appeals to the Superior Court of

New Jersey, Appellate Division, and thereafter to the

highest State Court, the Supreme Court of New Jersey,

this Court is not bound by petitioner’s actions. Rather the

Court could appropriately view the underlying decision

and the denial of review by the appellate courts as final

for purposes of 28 U.S.C. § 1257 in that a final ruling

on a clearly severable and distinct matter was entered by

the State courts. See Cox Broadcasting Corp. v. Cohn, 429

U.S. 469, 479 (1975); Coopers & Lybrand vy. Livesay, 437

U.S. 463, 468 (1978), Ray v. Robinson, 640 F.2d 474 (3rd

Cir. 1981). Cf also Adams yv. Adams, 53 N.J. Super. 424,

147 A.2d 568 (App. Div. 1959). Thus petitioner may have

unwittingly mischaracterized his State appeal as one lying

from an interlocutory order and accordingly lost his right

to seek timely review by this Court of the state court rul-

ing. That result, however, would neither compel nor jus-

tify the District Court asserting jurisdiction in the instant

matter to review the State court rulings. See Dist. of Col.

Ct. of Appeals v. Feldman, supra at 482-484 n.16; Dickinson

v. Petroleum Conversion Corp., 338 U.S. 507 (1950).

Even assuming, however, that the federal district court

properly assumed jurisdiction of this matter and that peti-

tioner in some unarticulated fashion has demonstrated

13

the discriminatory impact of R. 1:21-2(a) upon non-resi-

dent attorneys, there is no basis for this Court to consider

in a plenary fashion the question addressed comprehen-

sively in Leis v. Flynt, supra, namely, whether a State,

consistent with federal constitutional principles, may pre-

clude appearances in the State courts by attorneys, not

authorized to practice therein, based upon the absence of

any demonstration of necessity for participation in a

particular case by that counsel. As this Court has re-

peatedly recognized, the States have an “extremely im-

portant interest” in the regulation and licensure of at-

torneys practicing in their courts. See Middlesex Ethics

Comm. v. Garden State Bar Assoc., 457 U.S. 428, 434

(1982). Accordingly, this Court has emphasized that the

right to practice law in the State courts is neither a

privilege nor immunity of State or United States citizen-

ship nor a right otherwise independently created by federal

law. Leis v. Flynt, supra at 442 n.4, 443;* Silverman v.

Browning 414 F. Supp. 80 (D. Conn), aff’d 429 U.S. 876

(1976); Norfolk and Western R. Co. v. Beatty, 400 F.

Supp. 234 (S.D. Ill.) aff’d 423 U.S. 1009 (1975); Brown

v. Supreme Court of Virginia, 359 F. Supp. 549 (E.D.

Va) aff’d 414 U.S. 1034 (1973); In re Lockwood, 154 U.S.

116, 117 (1894); Bradwell vy. The State, 16 Wall. 180,

139 (1872). Likewise, the fact of admission to the bar of

one State does not establish any correspondening right

to practice in a sister state. Leis v. Flynt, supra at 443.

Rather, as has been repeatedly recognized by this Court,

any right to practice the legal profession is a matter ex-

clusively one of State law origin and control subject only

* Although petitioner now asserts that Leis v. Flynt is of no

relevance to this case, in papers filed with the Courts below he

conceded that all of the issues raised by his complaint were

governed by the Leis ruling. See p. 8, supra. Based upon this

concession alone, review should be denied.

A

14

to the requirement that the State not exercise its power

in an arbitrary or discriminatory manner or in a way

contemplated to deny First Amendment freedoms. Jd. at

442; Konigsberg v. State Bar of California, 353 U.S. 252,

273 (1957).

In this regard, this Court has upheld numerous restric-

tions imposed upon nonresidents seeking to practice laws

in a sister state. Thus, in Martin v. Davis, 187 Kan.

473, 357 P.2d 782 (S. Ct. 1960) app. dis. sub nom. Martin

v. Walton, 368 U.S. 25 (1961) this Court dismissed for

want of a substantial federal question a challenge under

the equal protection clause to a Kansas statute and rules

of court requiring that an attorney admitted to the Kansas

bar but whe also was admitted and regularly engaged

in the practice of law in another State only be, allowed

to practice before Kansas courts and administrative agen-

cies if he had the association of a Kansas lawyer. In

upholding the constitutionality of the requirement, this

Court acknowledged the validity of five factors cited by

the Kansas Supreme Court as underlying the restriction:

1) provision to Kansas citizens of the service of a resi-

dent attorney familiar with local ruies and procedure

and upon whom service could be made; 2) difficulties en-

countered by Kansas Courts and commissions in obtaining

the presence of attorneys from Missouri; 3) inability of

Kansas-officed attorneys to effectuate service on Missouri-

officed Kansas attorneys; 4) refusal of some Missouri-

officed Kansas attorneys to answer emergency calls; and

5) failure of Missouri officed Kansas attorneys to familiar-

ize themselves with Kansas rules of procedure and prac-

tice. 568 U.S. at 27-28. Notwithstanding the fact that the

appellant, a Missouri e*torney practicing across the Kan-

sas border, was a resident of and maintained a general

practice in Kansas and was familiar with local Kansas

rules and procedure, this Court concluded that the chal-

15

lenged Kansas requirement as explicated by the Kansas

Supreme Court constituted permissible regulation of out-

of-State attorneys. The fact therefore of possible “in-

cidental individual inequality” as applied to Mr. Martin

was in this Court’s view insufficient to warrant invalida-

tion. 368 U.S. at 26.

Likewise in Norfolk and Western Railway Co. v. Beatty,

supra, the Court declined te invalidate on federal consti-

tutional grounds* an illinois statute which permitted out-

of-state attorneys to appear in court proceedings in “iso-

lated cases” on a discretionary case-by-case basis. The

three-judge court reached this result notwithstanding the

fact that

. .. the eases [were] of federal origin, that the

Plaintiffs’ attorneys have been permitted to appear

without limitation numerous times in the past, that

the cases are presently being prepared for trial, that

the Plaintiffs’ attorneys are specialists regularly

representing Plaintiffs in Madison County and else-

where, that Plaintiffs in the state eases have free-

dom to select the forum of their choice, that the

accidents involved occurred elsewhere, that Plain-

tiffs’ attorneys have caused no disciplinary prob-

lems— [/d. at 237].

As the Court aptly noted:

To view it otherwise would be for this Court to

create a limited federal or national bar and to im-

pose it on the states. To do so would be in total

disregard of the state’s great interests in the con-

* The decision does not reveal what specific constitutional claims

were asserted.

16

trol and supervision of the practice of iaw in its

own courts through reasonable requirements for li-

censing and admission. [Jbid.]

Consistent with these rulings, and for the reasons ex-

pressed in Point I of the Supreme Court of New Hamp-

shire’s brief submitted in Supreme Court of New Hamp-

shire v. 4 iper, this Court should eonelude that the prac-

tice of law does not fall within the purview of the Privi-

leges and Immunities Clause. Yet even assuming that the

Court decides to the contrary in Piper an further, in-

validates the residency requirement therein, there is no

need for this Court to address the wholly independent issue

of a State’s regulation in its courts of the practice of law

by those out-of-state attorneys who have not sought ad-

mission to the bar. As this Court has repeatedly empha-

sized, the privileges and immunities clause “is not abso-

lute,” Toomer and Witsell, supra at 396, and this does

not preclude discrimination against citizens of other states

where there is a “substantial reason” for the difference

in treatment. Jd. at 398. Even assuming petitioner’s es-

tablishment of any distinction in the treatment of non-resi-

dent attorneys in this context, the State undisputedly has

a substantial interest in limiting the circumstances in which

those attorneys, who have never demonstrated to the satis-

faction of the State courts their competency to practice

law, may appear in State proceedings.

17

CONCLUSION

It is respectfully submitted that for these reasons

the petition for certiorari should be denied.

Dated: January 21, 1985

Respectfully submitted,

Irwin I. IKIMMELMAN

Attorney General of New Jersey

Attorney for Respondents, 1.V. DiMartino

AJ S.C., etc., and The Superior Court,

Law Division, etc.

By: Anprea M. SILKowITz

Deputy Attorney General

MicHaEL R. Coie

First Assistant Attorney General

Of Cownrsel.

Anprea M. Siixowitz

Deputy Attorney General,

On the Brief.