# Opposition Brief — FitzPatrick v. DiMartino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1962%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1005 ## Text 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 ips ASC eR ee ae eee IY RIPE ND eo dcticencsscenceenccnion ee Te NN SED ciiteticsiatncacbic aaoucnncnn New Jersey Court Rules Cited 16-200) TIS. Wes 1c eas Se I aici scieescessccdencstosceutonst la R. 1:21-2(a) BR. 1:21-2(a) (4) (i)- (Vi) ccocceeccccceccsnessceceesssseceeesesneees ay et. RMR! Nectar a OR eee eewnwe eee eee wwee PAGE ao ao nr 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 - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1962%3A2. Public record. Not legal advice.