Petition for Writ of Certiorari — Scariano v. Justices of the Supreme Court of Indiana
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Supreme Court, vg,
‘ii. 2D
941788 APR2 8 1995’
No. ___pgrige OF THE CLERK
In The
Supreme Court of the United States
October Term, 1994
’
ANTHONY G. SCARIANO,
Petitioner,
JUSTICES OF THE SUPREME COURT OF THE STATE
OF INDIANA, and MEMBERS OF THE STATE BOARD
OF LAW EXAMINERS OF THE STATE OF INDIANA,
Respondents.
+
Petition For Writ Of Certiorari To The
United States Court Of Appeals
For The Seventh Circuit
*
PETITION FOR WRIT OF CERTIORARI
+
JoHN M. Izzo
Counsel of Record
ANTHONY G. SCARIANO
SCARIANO, KuLA, ELLCH AND
Himes, CHTp.
1450 Aberdeen
Chicago Heights, IL 60411
(708) 755-1900
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
I. Whether Indiana’s rule allowing an attorney to be
admitted to practice based upon an out-of-state license
only if the attorney practices less in other states than in
Indiana violates the Equal Protection Clause of the Four-
teenth Amendment to the United States Constitution.
II. Whether Indiana’s rule allowing an attorney to
be admitted to practice based upon an out-of-state license
only if the attorney practices less in other states than in
Indiana violates the Commerce Clause of Article I of the
United States Constitution.
il
TABLE OF CONTENTS
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REFERENCE TO REPORTS OF OPINIONS BY
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STATEMENT OF FURIBOIC TIOWN. .. 2.2. cccccnsccess
CONSTITUTIONAL PROVISIONS AND REGULA-
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SEMA EMROIES UE SESS GA isc ccccceviannancewaes
SRIEMOARY CF ARAGLIMENT ... <2 22s ectscsccseswces
ARGUMENT FOR GRANTING THE WRIT.........
I. THE QUESTIONS PRESENTED WARRANT
REVIEW BY THIS COURT BECAUSE OF THEIR
IMPORTANCE AND BECAUSE THE COURT
OF APPEALS’ DECISION CONFLICTS WITH
APPLICABLE DECISIONS OF THIS COURT ..
Il. THE PREDOMINANT PRACTICE REQUIRE-
MENT VIOLATES THE EQUAL PROTECTION
a TE ee er rr re ae a
A. CONDITIONING EASIER ACCESS TO
PRACTICE LAW IN INDIANA UPON AN
ATTORNEY’S RELATIVE LACK OF BUSI-
NESS OUT-OF-STATE DOES NOT RATIO-
NALLY SERVE ANY LEGITIMATE STATE
eg) a Ee nen rr lot
B. RELATIVE “COMMITMENT” TO ONE
STATE OVER ANOTHER IS NOT A RATIO-
NAL MEANS TO OBTAIN A LEGITIMATE
DEARAD WUCMEEE s+ ivectcinseecnpaseanane
10
10
ill
TABLE OF CONTENTS - Continued
Page
C. THE COURT OF APPEALS DISREGARDED
THIS COURT’S STANDARDS FOR RATIO-
NAL BASIS REVIEW BY EVALUATING
THE RATIONALITY OF RULE 6 AS A
WHOLE RATHER THAN THE CLASSI-
PRU UID BUR URPEEES seca dcnevsersseewnss 15
Ill. THE PREDOMINANT PRACTICE REQUIRE-
MENT VIOLATES THE COMMERCE CLAUSE | 18
A. THE PREDOMINANT PRACTICE
REQUIREMENT CONSTITUTES DIRECT
REGULATION OF OR DISCRIMINATION
AGAINST INTERSTATE COMMERCE..... 18
B. THE COURT OF APPEALS DISREGARDED
THIS COURT’S PRECEDENTS IN WEIGHING
THE BURDEN OF THE BAR EXAMINATION
IN DECIDING TO APPLY THE COMMERCE
CRA Roe MAIC TEST... 2. cee c ees 21
C. EVEN UNDER THE COMMERCE CLAUSE
BALANCING TEST, THE PREDOMINANT
PRACTICE REQUIREMENT FAILS
BECAUSE IT SERVES NO LEGITIMATE
STATE INTEREST
ns Va sub ea ke ad 6068665 seen ede
RE LE PEG a ee ne
iV
TABLE OF AUTHORITIES
Page
CASES
Barnard v. Thorstenn, 489 U.S. 546, 103 L.Ed.2d 559,
Se ee, Ree EE ss piri ho eon ecaaeakere ence es 9,15
Brown-Forman Distillers Corp. v. New York State
Liquor Authority, 476 U.S. 573, 90 L.Ed.2d 552,
se ie ft. | ee errr re rye 18, 19,
City of Cleburne, Texas v. Cleburne Living Center, 473
U.S. 432, 87 L.Ed.2d 313, 105 S.Ct. 3249 (1985)....
Edgar v. MITE Corp., 457 U.S. 624, 73 L.Ed.2d 269,
Se Dt ee CRUD 60550 50d 0560s een asenvcwens 12,
Eisenstadt v. Baird, 405 U.S. 438, 447 L.Ed.2d 349,
ee Ce nono nix AN hw Rw es wv beeewun kes
Frazier v. Heebe, 482 U.S. 641, 96 L.Ed.2d 557, 107
i oe eee a rl ae 9,
Healy v. Beer Institute, Inc., 491 U.S. 324, 105
nee avo, 109 SAR. 2O91 (I9GR) 2 occ ec ee 18,
K-S Pharmacies, Inc. v. American Home Products
Corp, BEd F.0e Foe C7 CA TBE) occ cece seees
Maryland v. Louisiana, 451 U.S. 725, 68 L.Ed.2d 576,
PE Se OE REE 6.556 eed 9 ORR ene io dase
Pike v. Bruce Church, Inc., 397 U.S. 137, 25 L.Ed.2d
Py ee es ee CE in co hekna hese bekadaaer ns 24,
Rinaldi v. Yeager, 384 U.S. 305, 16 L.Ed.2d 577, 86
ic, ne I te ree Be ee a
Schware v. Board of Bar Examiners of the State of New
Mexico, 353 U.S. 232, 1 L.Ed.2d 796, 77 S.Ct. 752
og RR err eer rere rere re re yee ey eee
Schweiker v. Wilson, 450 U.S. 221, 67 L.Ed.2d 186.
is Ry. Be... Sar Sey ee
25
16
TABLE OF AUTHORITIES - Continued
Page
Sestric v. Clark, 765 F.2d 655 (7th Cir. 1985) ......... 14
Supreme Court of New Hampshire v. Piper, 470 U.S.
274, 84 L.Ed.2d 205, 105 S.Ct. 1272 (1985).......... 9
Supreme Court of Virginia v. Friedman, 487 U.S. 59,
101 L.Ed.2d 56, 108 S.Ct. 2260 (1988) ....... 9, 14, 15
Westinghouse Electric Corp. v. Tully, 466 U.S. 388, 80
L.Ed.2d 388, 104 S.Ct. 1856 (1984) ..10, 20, 21, 22, 23
Williams v. Vermont, 472 U.S. 14, 86 L.Ed.2d 11, 105
LS, Oe TAOUEs coax 0b ab 0 bcee se vannat denna? 10, 17
s
In The
Supreme Court of the United States
October Term, 1994
+
ANTHONY G. SCARIANO,
Petitioner,
JUSTICES OF THE SUPREME COURT OF THE STATE
OF INDIANA, and MEMBERS OF THE STATE BOARD
OF LAW EXAMINERS OF THE STATE OF INDIANA,
Respondents.
Petition For Writ Of Certiorari To The
United States Court Of Appeals
For The Seventh Circuit
¢
PETITION FOR WRIT OF CERTIORARI
+
Petitioner Anthony G. Scariano respectfully prays that a
Writ of Certiorari issue to review the judgment and opin-
ion of the United States Court of Appeals for the Seventh
Circuit entered in this proceeding on October 26, 1994.
o
REFERENCE TO REPORTS OF OPINIONS
BY COURTS BELOW
Scariano v. Justices of the Supreme Court of the State of
Indiana, 38 F.3d 920 (7th Cir. 1994)
Scariano v. Justices of the Supreme Court of the State of
Indiana, 47 F.3d 173 (7th Cir. 1995)
Scariano v. Justices of the Supreme Court of the State of
Indiana, 852 F.Supp. 708 (S.D.Ind. 1994)
¢
STATEMENT OF JURISDICTION
The judgment from which review is sought was
entered by the United States Court of Appeals for the
Seventh Circuit on October 26, 1994.
A timely petition for rehearing with suggestion for
rehearing en banc was filed on November 9, 1994. That
petition and suggestion were denied on February 2, 1995.
Jurisdiction to review the judgment of the Court of
Appeals in question by writ of certiorari is conferred by
28 U.S.C. § 1254.
CONSTITUTIONAL PROVISIONS
AND REGULATIONS INVOLVED
Constitution of the United States of America, Amend-
ment XIV, Section 1, in pertinent part:
“nor shall any State deprive any persons of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws.”
Constitution of the United States of America, Article I,
Section 8, in pertinent part:
“The Congress shall have Power
* * +
To regulate Commerce with foreign Nations,
and among the several States, and with the
Indian Tribes... . ”
Indiana Rules for Admission to the Bar and the Disci-
pline of Attorneys
Rule 6 Admission on Foreign License
“(1) A person who has been admitted to prac-
tice law in the highest court of law in any other
state or territory of the United States or the
District of Columbia, may be conditionally
admitted to practice law in Indiana upon a find-
ing by the State Board of Law Examiners that
said person has met each of the following condi-
tions:
(a) The applicant has actively engaged in
the practice of law for a period of at least
five (5) of the seven (7) years immediately
preceding the date of application. “Engaged
in the practice of law” shall mean:
(i) regularly performing legal services
for the general public as a lawyer; or
(ii) employment on a full-time salaried
basis by a governmental or business
entity as a lawyer performing duties of
which admission to the practice of law
is a prerequisite; or
(iii) teaching law on a full-time basis
in an accredited law school; or
(iv) serving as a judge of a court of
record; or
(v) a combination of the above.
(b) The applicant is a member in good
standing of the bar(s) of admission.
(c) The admission of the applicant is in the
public interest.
(d) The applicant meets the character and
fitness requirements of Indiana.
(e) The applicant has paid or tendered the
required fee.
(f) The applicant has not failed the Indiana
Bar Examination within two (2) years of the
date of application.
(g) The applicant has filed along with the
application an affidavit of the applicant’s
intent to engage actively and predominately
in the practice of law in Indiana.
(2) The applicant shall submit his application
accompanied by a fee of seven hundred fifty
dollars ($750). The Executive Director of the
Board may refer said application to the Nationa!
Conference of Bar Examiners for investigation
and report. The Board is authorized to pay all
expenses incident to the investigation of the
qualifications of the applicant. However, in the
event said application is considered and denied
by the Board prior to referral to the National
Conference, the Board is authorized to refund to
the applicant one half (1/2) of the application
fee. No part of the application fee shall other-
wise be refunded.
(3) Said conditional admission of a foreign
license may continue in force for one year, and
may be renewed for a like period upon the
submission of such verified individualized
information as will demonstrate to the satisfac-
tion of the board that the applicant has during
the past year been both (a) actively engaged in
the practice of law and (b) predominately in
Indiana. Each application for renewal of condi-
tional admission shall be accompanied by a fee
of $50.00. Upon the fifth consecutive renewal
granted to the applicant, the admission to prac-
tice shall be permanent.
(4) Applicants conditionally or permanently
admitted on foreign license are subject to, and
shall comply with, the Admission and Discipline
Rule, the Rules of Professional Conduct, and all
other requirements of statute and Supreme
Court Rules.”
STATEMENT OF THE CASE
While the State of Indiana admits attorneys to the
practice of law upon passing a bar examination, Rule 6 of
the Indiana Rules for Admission to the Bar and the Disci-
pline of Attorneys (“Rule 6”) creates an exception to the
bar examination requirement for those attorneys already
admitted to practice in other states who meet several
requirements. Among those requirements are those that
the attorney have a sufficient level of experience, obtain
continuing legal education, and demonstrate an active
practice in Indiana. None of these requirements has been
challenged in this case. Rule 6 further provides that the
applicant both swear that he or she intends to practice
predominately in Indiana and thereafter demonstrate for
each of the next five years that the applicant has actually
practiced predominately in Indiana (hereinafter referred
to collectively as the “predominant practice require-
ment”). Respondent State Board of Law Examiners has
issued an interpretation of this provision defining a prac-
tice “predominantly in Indiana” as one which “in terms
of the overall time spent,” involves as much or more
practice “dealing with Indiana ‘aw, representing Indiana
clients, or handling cases in Indiana courts” as with
“practice in any other jurisdiction.”!
Petitioner is an Illinois attorney meeting all of the
requirements for an admission under Rule 6 except the
predominant practice requirement. Respondents are the
state officials who promulgate, interpret, and enforce
Indiana’s bar admission rules, including Rule 6. In his
complaint and on appeal, Petitioner has challenged the
validity of the predominant practice requirement under
both the Equal Protection Clause of the Fourteenth
Amendment and the Commerce Clause of Article I of the
United States Constitution.
The United States District Court for the Southern
District of Indiana dismissed the complaint with preju-
dice. Scariano v. Justice of the Supreme Court of the State of
| While Rule 6 uses the word “predominately,” the State
Board of Law Examiners defined the term “predominantly.”
Both courts below and the parties have adopted the term “pre-
dominant practice requirement” and Petitioner continues that
practice here.
Indiana, 852 F.Supp. 708 (S.D.Ind. 1994). A panel of the
United States Court of Appeals for the Seventh Circuit
affirmed the dismissal. Scariano v. Justice of the Supreme
Court of the State of Indiana, 38 F.3d 920 (7th Cir. 1994).
Upon a petition for rehearing with a suggestion of rehear-
ing en banc, rehearing and rehearing en banc were
denied. Three circuit judges, however, dissented from the
denial of the rehearing en banc and Chief Circuit Judge
Posner filed a dissenting opinion. Scariano v. Justice of the
Supreme Court of the State of Indiana, 47 F.3d 173 (7th Cir.
1995)
Federal subject-matter jurisdiction in the District
Court was based on 28 U.S.C. §§ 1331 and 1343 in that
this matter involves both federal law questions and civil
rights claims. The action was brought pursuant to 42
U.S.C. §§ 1983 and 1988.
SUMMARY OF ARGUMENT
1. Review by this Court is warranted because of the
importance of the state bar admission rule at issue.
Review is also warranted because the Court of Appeals
decision below conflicts with this Court’s standards for
analyzing equal protection and commerce clause claims
by reviewing the validity of the admission rule as a
whole rather then the aspect of the rule which is chal-
lenged and by weighing the presumed effect on com-
merce of a rule which expressly discriminates against
interstate commerce.
2. The state bar admission rule at issue permits
experienced attorneys with out-of-state law licenses to
practice in Indiana without passing a bar examination
only if they practice less in the other state than in Indi-
ana. This comparison of the relative amounts of an attor-
ney’s in-state to out-of-state practices violates equal
protection because it does not rationally serve any legiti-
mate governmental purpose. The classification does not
logically result in the admission of attorneys more famil-
iar with Indiana law.
3. This court’s precedents shows that an attorney's
demonstrable “commitment” to one state over another
does not by itself rationally cause that attorney to become
more familiar with that state’s law.
4. Equal protection analysis requires a comparison
of those similarly situated except for the classification at
issue. It does not permit a court to compare the plaintiff
to those also denied the state benefit but for different
reasons, which is what the Court of Appeals did.
5. Because the state bar admission rule at issue con-
ditions easier access to an Indiana law license for practic-
ing attorneys based on the relative amount of the
attorney's out-of-state business, the rule constitutes direct
discrimination against interstate commerce and, there-
fore, violates the Commerce Clause.
6. The Court of Appeals erred in weighing the
extent of the burden on commerce after it concluded that
the rule directly discriminated against interstate com-
merce.
7. Even if the Commerce Clause balancing test were
to be used, the absence of a legitimate governmental
objective served by the rule should render it invalid.
¢
ARGUMENT FOR GRANTING WRIT
I. THE QUESTIONS PRESENTED WARRANT
REVIEW BY THIS COURT BECAUSE OF THEIR
IMPORTANCE AND BECAUSE THE COURT OF
APPEALS’ DECISION CONFLICTS WITH APPLI-
CABLE DECISIONS OF THIS COURT.
In recent years, this Court has several times reviewed
the standards set by the states or lower federal courts for
admission of attorneys to the practice of law, especially in
the context of restrictions on attorneys from other juris-
dictions. See, e.g., Supreme Court of New Hampshire v. Piper,
470 U.S. 274, 84 L.Ed.2d 205, 105 S.Ct. 1272 (1985); Frazier
v. Heebe, 482 U.S. 641, 96 L.Ed.2d 557, 107 S.Ct. 2607
(1987); Supreme Court of Virginia v. Friedman, 487 U.S. 59,
101 L.Ed.2d 56, 108 S.Ct. 2260 (1988); Barnard v. Thorstenn,
489 U.S. 546, 103 L.Ed.2d 559, 109 S.Ct. 1294 (1989). None
of these cases, however, has involved the sort of Equal
Protection Clause and Commerce Clause challenges
raised here. This Court’s attention to such bar admission
rules demonstrates the importance of these rules to the
administration of justice and the relationship of the states
within our federal system. The present case, however,
involves a rule amended after the cited cases and which,
while it avoids the precise deficiencies present in the
rules invalidated in those cases, runs afoul of distinct
constitutional standards.
10
Further, as discussed more fully below in Parts IIC
and IIIB, the Court of Appeals’ decision analyzed the
constitutional claims in a manner directly in conflict with
this Court’s precedents. First, in assessing the validity of
the specific classification in the bar admission rule at
issue in Petitioner’s equal protection claim, the Court of
Appeals did not compare how Petitioner was treated to
those falling into the other class within the rule, but only
to those who would not come within the reach of the rule
for different reasons. (App. 7-10, 38 F.3d at 924-25.) This
“bootstrap” analysis was expressly rejected in Williams v.
Vermont, 472 U.S. 14, 27, 86 L.Ed.2d 11, 105 S.Ct. 2465,
2474 (1985). Second, after it acknowledged that the “rule
also clearly imposes differential burdens on attorneys
practicing more out of state than in state,” the Court of
Appeals did not invalidate the rule as a regulation
facially discriminating against interstate commerce, but
instead balanced the perceived effect on interstate com-
merce. (App. 12-17, 38 F.3d at 925-28.) This approach
violates numerous precedents of this Court, including
Westinghouse Electric Corp. v. Tully, 466 U.S. 388, 80
L.Ed.2d 388, 104 S.Ct. 1856 (1984).
Il. THE PREDOMINANT PRACTICE REQUIREMENT
VIOLATES THE EQUAL PROTECTION CLAUSE.
A. CONDITIONING EASIER ACCESS TO PRAC-
TICE LAW IN INDIANA UPON AN ATTOR-
NEY’S RELATIVE LACK OF BUSINESS OUT-
OF-STATE DOES NOT RATIONALLY SERVE
ANY LEGITIMATE STATE INTEREST.
Despite the authority of states to regulate admission
to the practice of law in their courts, a state may not
11
exclude a person from the practice of law or from any
other occupation in a manner that contravenes the United
States Constitution. Schware v. Board of Bar Examiners of
the State of New Mexico, 353 U.S. 232, 238-39, 1 L.Ed.2d
796, 77 S.Ct. 752, 756 (1975). Here, Petitioner has alleged
that Indiana’s predominant practice requirement excludes
him from the practice of law in the State in a manner
inconsistent with the Equal Protection Clause. At the
minimum level of equal protection analysis, legislation
which classifies persons must do so in a manner ratio-
nally related to legitimate governmental objectives.
Schweiker v. Wilson, 450 U.S. 221, 230, 67 L.Ed.2d 186, 101
S.Ct. 1074, 1080-81 (1981). Rule 6 by its terms separates
active attorneys with out-of-state licenses into two cate-
gories: those who practice predominantly in Indiana and
those who do not. By interpretation of Respondent State
Board of Law Examiners, this classification of Rule 6
separates those who spend most of their professional
time on matters pertaining to Indiana law, Indiana court
proceedings, or Indiana clients, from those who spend
most of their professional time on matters pertaining to
the law, courts, and clients of another jurisdiction.
The only reason for the predominant practice
requirement suggested by the Court of Appeals and the
District Court is to ensure that attorneys practicing in the
Indiana courts are familiar with state law. (App. 7, 38 F.3d
at 924; App. 33, 852 F.Supp. at 715). While this reason
does constitute a legitimate governmental objective, the
predominant practice requirement does not rationally
serve that objective. There is simply nothing about being
less familiar with another state’s law which tends to
make one more familiar with the law of the licensing
12
state. Further, there is no legitimate state interest in regu-
lating the conduct of business in other states, as the
present rule appears to do. See Edgar v. MITE Corp., 457
U.S. 624, 642-43, 73 L.Ed.2d 269, 102 S.Ct. 2629, 2640-41
(1982) (plurality opinion).
Petitioner does not contest that requiring a certain
amount of experience in handling Indiana law or court
matters for a limited period of time is one rational means
of ensuring familiarity in handling Indiana law or court
matters. To that end, Petitioner has not objected to that
part of Rule 6 which requires the applicant to practice
“actively” in Indiana. The problem with Rule 6 is that it
does not merely specify in absolute terms a quantum of
such experience, but defines the requisite amount of
experience relative to the attorney’s experience outside
the state: the applicant must practice not only actively in
Indiana, but mostly in Indiana.
To illustrate, an attorney who works 1000 hours per
vear entirely on Indiana law matters, may keep his Indi-
ana license under Rule 6, presuming 1000 hours per year
meets the “actively engaged” portion of the rule. How-
ever, a second attorney, if she works 3001 hours per year,
but only 1500 of those on Indiana matters, could not keep
an Indiana license even though the second attorney has
worked half again as many hours in Indiana as the first
attorney. Or, as stated by Chief Circuit Judge Posner
below, if one lawyer bills Illinois clients for 900 hours of
work a year and Indiana clients for the same number,
while a second lawyer bills Illinois clients for 500 hours
and Indiana clients for 800, only the second lawyer may
gain admission without taking the Indiana bar despite his
fewer hours with Indiana clients. (App. 40, 47 F.3d at
13
173-74, Posner, C.J., dissenting from denial of rehe ving
en banc.) If the aim is to guarantee a certain amount of
experience in Indiana legal practices, it is not rational to
add into the calculation a comparison to the amount of
non-Indiana legal practices.
There is another aspect of the rule that also demon-
strates its irrationality. The Respondent State Board of
Law Examiners, in defining the term “in Indiana” in the
predominant practice requirement of Rule 6, included
“representing Indiana clients” as well as “handling cases
in Indiana courts” and “dealing with Indiana law.” By
including the representation of Indiana residents as an
alternative to the handling of matters involving Indiana
law or courts, Defendants have only ensured that the
predominant practice requirement does not even require
that the major portion of the Rule 6 applicant’s practice
involves experience in Indiana law or court procedures.
An admissions rule which permits compliance by attor-
neys who represent Indiana residents suing or being sued
out of state or in federal court or Indiana residents need-
ing legal advice on matters of law in other jurisdictions is
plainly not designated to require familiarity with Indiana
law and court procedures. See example cited by Chief
Circuit Judge Posner, App. 42-43, 47 F.3d at 174-75 (Pos-
ner, C.J., dissenting from denial of rehearing en banc).
B. RELATIVE “COMMITMENT” TO ONE STATE
OVER ANOTHER IS NOT A RATIONAL
MEANS TO OBTAIN A LEGITIMATE STATE
INTEREST.
The Court of Appeals reasoned that the predominant
practice requirement rationally serves the goal of foster-
ing attorney familiarity with the local law because, “lilf
14
the largest portion of an attorney’s practice is in one
state, the attorney has a strong incentive to master the
law of that state.” (App. 9, 38 F.3d at 925, citing Sestric v.
Clark, 765 F.2d 655, 661 (7th Cir. 1985).) In Sestric, the bar
admission rule at issue was a residency requirement:
while newly resident attorneys who were experienced in
other states did not have to take a bar examination to
gain admission in Illinois, equally experienced nonresi-
dents did have to take the bar examination. 765 F.2d at
656-57. The Seventh Circuit’s reasoning in support of the
rationality of this residency requirement, to which it
referred to in this case, was that residency constituted a
“commitment” to Illinois and served as a valid substitute
to the bar examination; the “focus of [the nonresident’s]
practice being elsewhere, his incentive to master Illinois
law is less than that of a resident who expects to practice
Illinois law full time.” 765 F.2d at 661.
However, since Sestric was decided, this Court has
repeatedly rejected the proposition that a “commitment”
to a state such as residency or an in-state office logically
serves the legitimate goal of fostering attorney familiarity
with local law or court rules. See Supreme Court of Virginia
v. Friedman, 487 U.S. 59, 69, 101 L.Ed.2d 56, 108 S.Ct. 2260,
2266 (1988), (seeing “no reason to assume that nonresi-
dent attorneys who, like Friedman, seek admission to the
Virginia bar on motion will lack adequate incentives to
remain abreast of changes in the law or to fulfill their
civic duties”); Frazier v. Heebe, 482 U.S. 641, 649, 96
L.Ed.2d 557, 107 S.Ct. 2607, 2613 (1987), (holding that an
in-state office “will not elevate [the attorney's] under-
standing of the local rules” and that the location of a
lawyer's office “simply has nothing to do with his or her
15
intellectual ability or experience in litigating cases in
Federal District Court”); Barnard v. Thorstenn, 489 U.S.
546, 556, 103 L.Ed.2d 559, 109 S.Ct. 1294, 1301 (1989),
(observing that it was neither “realistic” nor “practical”
to assume that nonresidents would fail to take steps
necessary to keep informed of local law). While these
cases were not decided under the Equal Protection Clause
(Fraiser was decided under the Court’s supervisory
authority over the federal courts; Friedman and Barnard
were decided under the Privileges and Immunities
Clause), their reasoning totally undermines the position
of the Seventh Circuit that familiarity with local law or
court rules is reasonably enhanced by a requirement of an
overt commitment to the state distinct from steps toward
actually becoming familiar with local law or court rules.
C. THE COURT OF APPEALS DISREGARDED
THIS COURT’S STANDARDS FOR RATIO-
NAL BASIS REVIEW BY EVALUATING THE
RATIONALITY OF RULE 6 AS A WHOLE
RATHER THAN THE CLASSIFICATION AT
ISSUE.
The subject claim that the predominant practice
requirement violates the Equal Protection Clause is based
on the contention that the line drawn by that particular
requirement is not rational. That is, among that group of
attorneys who all have out-of-state licenses and practice
actively in Indiana, the line drawn between those who
happen to practice mostly in Indiana and those who
happen to practice mostly in a different state does not
rationally serve the purported state purpose of fostering
greater familiarity with Indiana law. In adjudging this
16
claim, the Court of Appeals looked beyond the classifica-
tion at issue and evaluated the rationality of Rule 6 as a
whole, asserting that this broader approach was required
by rational basis review. (App. 8-10, 38 F.3d at 925.) In so
doing, however, the Court of Appeals misstated the
nature of such review as established by the decisions of
this Court.
An essential part of equal protection analysis even
under the rational basis standard is that all persons “sim-
ilarly situated” or “similarly circumstanced” be treated
alike. See, e.g., City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432, 439, 87 L.Ed.2d 313, 105 S.Ct. 3249,
3254 (1985); Eisenstadt v. Baird, 405 U.S. 438, 447, 31
L.Ed.2d 349, 92 S.Ct. 1029, 1034 (1972). Thus, it is the
rationality of the particular classification, not the state’s
general approach to the subject matter, which is to be
reviewed and that rationality is to be judged by compari-
son of the treatment of those “similarly situated” or “sim-
ilarly circumstanced.” The fact that Rule 6 as a whole
rationally serves the goal of fostering familiarity with
Indiana law for out-of-state attorneys without taking the
bar exam is beside the point. Rule 6 rationally serves that
legitimate state goal through the several requirements not
challenged in the subject claim. Petitioner challenges only
the rationality of the predominant practice requirement
and that rationality can only properly be determined by
comparing those who meet all of the requirements of
Rule 6 except the predominant practice requirement to
those who meet all of the requirements of Rule 6 includ-
ing the predominant practice requirement, .e. those “sim-
ilarly situated.” This the Court of Appeals did not do.
Sigeneutee yy ytine one Rn pene rena
17
The error of the Court of Appeals’ approach is clearly
demonstrated by this Court’s opinion in Williams v. Ver-
mont, 472 U.S. 14, 86 L.Ed.2d 11, 105 S.Ct. 2465 (1985).
There, Vermont imposed a use tax on cars registered in
state, but granted an exemption for the amount paid to
another state in sales or use tax if that state granted a
similar credit for taxes paid in Vermont. However, this
exemption was made available only to those who were
Vermont residents at the time the other state's taxes were
paid. The Court held, under rational basis review, that
there was no legitimate purpose furthered by differentiat-
ing availability of the exemption based on a person's past
residence. 472 U.S. at 23-24, 105 S.Ct. at 2471-72. One of
the state’s arguments in defense of the classification was
that persons who were not residents at the time their car
was purchased were no worse off than other persons who
could not qualify for the exemption. The Court disposed
of this argument as follows:
“Yet the fact that all those not benefitted by the
challenged exemption are treated equally has no
bearing on the legitimacy of that classification in
the first place. A State cannot deflect an equal
protection challenge by observing that in light
of the statutory classification all those within
the burdened class are similarly situated. The
classification must reflect pre-existing differ-
ences; it cannot create new ones that are sup-
ported by only their own bootstraps. ‘The Equal
Protection Clause requires more of a state law
than nondiscriminatory application within the
class it establishes.’ Rinaldi v. Yeager, 384 US.
305, 308, 16 L.Ed.2d 577, 86 S.Ct. 1497, 1499
(1966).” 472 U.S. at 27, 105 S.Ct. at 2474.
18
Similarly here, the Court of Appeals attempted to
ascertain the rationality of the predominant practice
requirement by comparing those who meet all the
requirements of Rule 6 to those who fail any one or more
of those requirements, not necessarily the predominant
practice requirement. But the latter group is not similarly
situated to Petitioner: except for the predominant practice
requirement, he does meet the Rule 6 requirements.
Ill. THE PREDOMINANT PRACTICE REQUIRE-
MENT VIOLATES THE COMMERCE CLAUSE.
A. THE PREDOMINANT PRACTICE REQUIRE-
MENT CONSTITUTES DIRECT REGULA-
TION OF OR DISCRIMINATION AGAINST
INTERSTATE COMMERCE.
Under the “dormant” Commerce Clause, the validity
of a state regulation of commerce, in the absence of
federal regulation, is to be measured by one of two dis-
tinct tests. One test applies when the state regulation
“directly regulates or discriminates against interstate
commerce, or when its effect is to favor in-state economic
interests over out-of-state interests”; these regulations are
generally struck down. Brown-Forman Distillers Corp. v.
New York State Liquor Authority, 476 U.S. 573, 578-79, 90
L.Ed.2d 552, 106 S.Ct. 2080, 2084 (1986). More specifically,
a statute that directly controls commerce occurring
wholly outside the boundaries of a state exceeds the
limits of the state’s authority and is invalid regardless of
whether the statute’s extraterritorial reach was intended.
Healy v. Beer Institute, Inc., 491 U.S. 324, 105 L.Ed.2d 275,
109 S.Ct. 2491, 2499 (1989). Further, a law which by its
terms discriminates against commerce across state lines is
19
unconstitutional unless that discrimination is demonstra-
bly justified by a valid factor unrelated to economic pro-
tectionism. Healy, 109 S.Ct. at 2501. The second test
applies where the regulation “has only indirect effects on
interstate commerce and regulates evenhandedly”; then,
a court examines whether the State’s interest is legitimate
and whether the burden on interest cormmerce exceeds
the local interests served. Brown-Forman, 476 U.S. at
578-79, 106 S.Ct. at 2084. The Court of Appeals relied
upon the second (i.¢., balancing) test to uphold the pre-
dominate practice requirement. Petitioner submits that
the Court of Appeals neglected this Court’s standards
both in how it decided to employ the balancing test and
how it applied that test.
The predominant practice requirement is a state law
which attempts to directly regulate and limit commerce
defined only as occurring wholly outside Indiana. It
requires that attorneys admitted to practice under Rule 6
practice as much or more in Indiana as in other states.
The Court of Appeals itself acknowledged that this is the
same as requiring that these attorneys not practice in
other states more than they do in Indiana. (App. 12, 38
F.3d at 926, quoting from K-S Pharmacies, Inc. v. American
Home Products Corp., 962 F.2d 728, 730 (7th Cir. 1992),
“Any statute of the form ‘charge in this state the same
price you charge outside it’ carries the implied command:
‘Charge outside this state the same price you charge
inside it.’ ”) Just as a state cannot tell sellers to charge the
same price within its borders as they charge in other
states (Healy; Brown-Forman), Respondents cannot induce
attorneys to limit their practice of law in other states in
20
order to practice more in Indiana. This exercise of extra-
territorial power over the commerce of other states is per
se unconstitutional.
This Court has previously addressed the permis-
sibility under the Commerce Clause of a state scheme
employing differential treatment of entities based on the
relative amounts of their business conducted in-state and
out-of-state. In Westinghouse Electric Corp. v. Tully, 466
U.S. 388, 80 L.Ed.2d 388, 104 S.Ct. 1856 (1984), the State of
New York imposed a franchise tax on the parent com-
panies of Domestic International Sales Corporations
(DICSs), corporations receiving favorable federal income
tax treatment due to the fact that their assets and receipts
are export-related. As part of the New York tax scheme,
there was an offsetting tax credit for the parent com-
panies. This tax credit was computed based, in part. on
the relative amounts of the companies’ in-state and out-
of-state shipping activities. In holding that the tax credit
scheme was unconstitutional, this Court observed the
following with regard to how the tax credit was to be
computed:
“{It] has the effect of treating differently parent
corporations that are similarly situated in all
respects except for the percentage of their
DISCs’ shipping activities conducted from New
York. This adjustment has the effect of allowing
a parent a greater tax credit on its accumulated
DISC income as its subsidiary DISC moves a
greater percentage of its shipping activities into
the State of New York. Conversely, the adjust-
ment decreases the tax credit allowed to the
parent for a given amount of its DISC’s shipping
activity conducted from New York as the DISC
21
increases its shipping activities in other States.
Thus, not only does the New York tax scheme
‘provide a positive incentive for increased busi-
ness activity in New York State,’ Budget Report,
at 18, but also it penalizes increases in the
DISC’s shipping activities in other States.” 466
U.S. at 400-01, 104 S.Ct. at 1863-65; emphasis
added; footnote omitted.
Like the tax credit scheme in Westinghouse, the pre-
dominant practice requirement penalizes or burdens
attorneys directly and expressly based upon the relative
amount of their out-of-state business.
B. THE COURT OF APPEALS DISREGARDED
THIS COURT’S PRECEDENTS IN WEIGHING
THE BURDEN OF THE BAR EXAMINATION
IN DECIDING TO APPLY THE COMMERCE
CLAUSE BALANCING TEST.
The Court of Appeals first recognized the two-tiered
Commerce Clause analysis and then acknowledged that
the predominant practice requirement “clearly imposes
differential burdens on attorneys practicing more out of
state than in state.” (App. 12, 38 F.3d at 926.) The Courts
of Appeals then, however, engaged in a balancing of the
burdens on interstate commerce in order to decide that
there was no direct discrimination. This approach is
totally inconsistent with the tests delineated by this Court
because it ignores facial discrimination against out-of-
state commerce and because it employs a balancing of the
burdens to determine which Commerce Clause test to use
rather than as one of the tests after the absence of direct
discrimination is determined.
ey
22
Again, the decision in Westinghouse Electric Corp. v.
Tully, 466 U.S. 388, 80 L.Ed.2d 388, 104 S.Ct. 1856 (1984),
is instructive. After determining that the state tax credit
scheme based on the relative amount of a company’s in-
state and out-of-state business was facially discrimina-
tory against interstate commerce, the Court rejected the
State’s argument that such discrimination was permiss-
ible where the burden on interstate commerce was insig-
nificant, stating that “[w]hen a tax, on its face, is
designed to have discriminatory economic effects, the
Court ‘need not know how unequal the Tax is before
concluding that it unconstitutionally discriminates.’ ” 466
U.S. at 406-07, 104 S.Ct. at 1867, quoting Maryland v.
Louisiana, 451 U.S. 725, 760, 68 L.Ed.2d 576, 101 S.Ct. 2114,
2136 (1981).
Unlike this Court’s analysis in Westinghouse, how-
ever, the Court of Appeals here did not stop its inquiry
into which test to apply when it noted the facial discrimi-
nation against interstate commerce. Instead, it weighed
the burden of the bar examination option. (App. 13-17, 38
F.3d at 926-28.) First, the Court of Appeals pointed out
that Petitioner “can obtain what he wants... simply by
sitting for the bar examination” (App. 13, 38 F.3d at
926-27; emphasis added.) Of course, the companies in
Westinghouse need “simply” have paid an additional
amount of tax in order to continue doing business in New
York. Direct discrimination against interstate commerce is
invalid no matter how slight the added cost.
The Court of Appeals then stated that attorneys with
predominantly out-of-state practices are not discriminated
against as compared to “the vast majority of Indiana attor-
neys” who do not have out-of-state licenses and who,
23
therefore, must take the exam. (App. 13, 38 F.3d at 927.)
However, as the Court of Appeals itself pointed out (App.
15, 38 F.3d at 927), they are discriminated against in rela-
tion to those attorneys, whatever their number, who are
experienced attorneys with out-of-state licenses but who
will now practice mostly in Indiana. As with equal protec-
tion, the presence of discriminatory treatment cannot be
disregarded by the simple expedient of finding a different
group against which to compare the disfavored one.
Finally, the Court of Appeals relied on its conclusion
that the predominant practice requirement will have a de
minimis effect on interstate commerce because it will not
induce many attorneys to give up out-of-state practices in
order to avoid taking the bar examination. (App. 14, 38
F.3d at 927.) But, as the Westinghouse case demonstrates,
the degree of burden on interstate commerce is not part
of the Commerce Clause equation unless a court finds
that there is no direct discrimination; the supposedly
slight impact on commerce cannot be used to do away
with the strict Commerce Clause test despite the presence
of direct discrimination. 466 U.S. at 405-07, 104 S.Ct.
1867-68. Just as this Court in Westinghouse did not
address, once direct discrimination against interstate
commerce was noted, how many companies might shift
their shipping activities between states, the Court of
Appeals below should not have considered whether the
extraterritorial impact of the predominant practice
requirement was “speculative at best” and “incidental”
(App. 17, 38 F.3d at 928), once it observed that the
requirement “clearly imposes differential burdens on
attorneys practicing more out of state than in state” (App.
12, 38 F.3d at 926).
24
C. EVEN UNDER THE COMMERCE CLAUSE
BALANCING TEST, THE PREDOMINANT
PRACTICE REQUIREMENT FAILS BECAUSE
IT SERVES NO LEGITIMATE STATE INTER-
EST.
After determining that the Commerce Clause balanc-
ing test was the correct one to apply to Petitioner’s claim,
the Court of Appeals wasted little effort in finding that
the scales tipped in favor of validating the predominant
practice requirement because of “the legitimacy of the
state’s interest in regulating the legal profession.” (App.
17, 38 F.3d at 928.) In so holding, the Court of Appeals
again misapplied this Court’s standards.
The balancing test was articulated as follows in Pike
v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L.Ed.2d 174, 90
S.Ct. 844, 847 (1970):
“When the statute regulates even-handedly to
effectuate a legitimate local public interest, and
its effects on interstate commerce are only inci-
dental, it will be upheld unless the burden
imposed on such commerce is clearly excessive
in relation to the putative local benefits.”
Here, the Court of Appeals did not even examine
what the “putative local benefits” of the predominant
practice requirement were; it only cited the state’s inter-
est in “regulating the legal profession.” However, as dis-
cussed in Part II above, the legitimate state interest in
fostering attorney familiarity with state law is not “etfec-
tuated” by the predominant practice requirement. What
local benefit is there in inducing an attorney to reduce or
restrain the growth in his or her practice in another state?
— sate nn ates een enema aaa
The Pike decision recognized that even a slight and
indirect effect on interstate commerce should not be per-
mitted where a state’s interest is insubstantial. 397 U.S. at
146, 90 S.Ct. at 849. Here, where the proffered legitimate
state interest (encouraging attorneys to become more
knowledgeable about state law) is not served by the rule
and where the interest which is served by the rule (regu-
lation of the amount of business conducted in another
state) is not legitimate (see Edgar v. MITE Corp., 457 U.S.
624, 642-43, 73 L.Ed.2d 269, 102 S.Ct. 2629, 2641 (1982)
(plurality opinion); Brown-Forman, 476 U.S. at 585, 106
S.Ct. 2087), the scales must tip against the rule. As Chief
Circuit Judge Posner stated: “The rule flunks the laxest
sort of balancing test.” (App. 43, 47 F.2d at 175, Posner,
C.J., dissenting from denial of rehearing en banc.)
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Seventh Circuit.
Respectfully submitted,
JOHN M. Izzo
Counsel of Record
ANTHONY G. SCARIANO
SCARIANO, KuLA, ELLCH AND
Himes, CuHTp.
1450 Aberdeen
Chicago Heights, Illinois 60411
(708) 755-1900
App. 1
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 94-1783
ANTHONY G. SCARIANO,
Plaintiff-Appellant,
VU.
JUSTICES OF THE SUPREME COURT
OF THE STATE OF INDIANA
and MEMBERS OF THE
StaTE BOARD OF LAW
EXAMINERS OF THI
STATE OF INDIANA,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division. No. 93 C 606 -
Sarah Evans Barker, Chief Judge.
ARGUED SEPTEMBER 7, 1994 — Decipep Octoser 26, 1994
Before Cum™incs, BAUER and Cupany, Circuit Judges
Cupany, Circuit Judge. The Supreme Court of Indiana
exempts out-of-state practitioners from the bar examina-
tion only if they practice “predominately” in Indiana for
a period of five years. Anthony G. Scariano, an attorney
practicing in Illinois, asserts that this rule violates the
Equal Protection Clause of the Fourteenth Amendment
App. 2
and the Commerce Clause of Article | of the Constitution.
The district court dismissed Scariano’s complaint for fail-
ure to state a claim upon which relief could be granted.
Chief Judge Barker held that the indirect consequences of
Indiana's rule did not rise to the level of an Equal Protec-
tion Clause violation or a violation of the Commerce
Clause.! We affirm.
I.
Anthony G. Scariano has practiced law in Illinois
since 1975. He maintains an office and an active practice
in Chicago Heights, Illinois, only a few miles from the
Illinois-Indiana border.
In 1990, Scariano applied for admission to the Indi-
ana Bar under that state’s foreign license provision, Rule
6 of the Indiana Rules for Admission to the Bar and the
Discipline of Attorneys (Rules).2 An applicant can gain
' In the lower court, Scariano also asserted a right to travel
claim and challenged the rule as applied. Because he does not
challenge the district court’s rulings on these issues on appeal,
we will not discuss them.
* The relevant text of Rule 6 provides:
(1) A person who has been admitted to practice law
in the highest court of law in any other state .. . may be
conditionally admitted to practice law in Indiana upon
a «nding by the State Board of Law Examiners that
said person has met each of the following conditions:
(a) The applicant has actively engaged in the
practice of law for a period of at least five (5) of
the seven (7) years immediately preceding the
date of the application. “Engaged in the practice
of law” shall mean:
App. 3
conditional admission to the Indiana Bar under this pro-
vision by submitting an affidavit of intent to engage in
practice predominately in Indiana. Scariano obtained a
conditional license on March 4, 1991.
Renewal of this conditional admission depends upon
the applicant’s ability to demonstrate an active practice,
predominately in Indiana, on a yearly basis. If the appli-
cant succeeds in demonstrating such an active practice
for a period of five years, he or she is admitted to the
Indiana Bar.
Indiana’s Board of Law Examiners interprets and
applies Indiana’s Rules. That body recently interpreted
the “predominant practice requirement” of Rule 6(3).°
The Board stated that:
(i) regularly performing legal services for
the general public as a lawyer. ...
(g) The applicant has filed along with the appli-
cation an affidavit of the applicant’s intent to
engage actively and predominately in the prac-
tice of law in Indiana.
(3) Said conditional admission on a foreign license
may continue in force for one year, and may be
renewed for a like period upon the submission of
such verified individualized information as will dem-
onstrate to the satisfaction of the Board that the appli-
cant has during the past year been both (a) actively
engaged in the practice of law, and (b) predominately
in Indiana. . . . Upon the fifth consecutive renewal
granted to the applicant, the admission to practice
shall be permanent.
3 The Rules use the word “predominately.” The Board, how-
ever, defined the term “predominantly.” The district court adopted
the term “predominant practice requirement” to refer to both words
used by the State of Indiana. We do likewise on appeal.
App. 4
The term “in Indiana” means dealing with Indi-
ana law, representing Indiana clients, or han-
dling cases in Indiana courts, i.e., the applicant
must look to the substance of what he or she is
doing in the practice that relates to Indiana law,
courts and clients rather than the physical loca-
tion of his office.
,
The term “predominantly” means that the indi-
vidual’s practice in Indiana must exceed, or be
equal to, his or her practice in any other juris-
diction.
The application of this requirement prevented Scar-
iano from renewing his conditional license to practice law
in Indiana. Because he had a substantial practice in Illi-
nois, it was impossible for him to provide proof of an
Indiana practice that exceeded or equaled that of Illinois.
Scariano now attempts to challenge the predominant
practice requirement. Although Indiana’s Rules provide
him the alternative means of gaining admission through
bar examination, he undertakes an attack on Indiana’‘s
foreign practice provision, Rule 6. He characterizes Indi-
ana’s demand that he take the bar examination —- when
others with out-of-state practices are exempt - as an
unreasonable burden. The district court found otherwise.
We affirm.
I].
State courts have traditional authority to control bar
admission. Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979). A
state can therefore require observance of high standards,
such as proficiency in the law, before admitting an appli-
cant to the bar. Schware v. Board of Bar Examiners of New
App. 5
Mexico, 353 U.S. 232, 239 (1957). A state’s discretion is
not, however, unfettered. State bar admission require-
ments must have a rational connection with an appli-
cant’s legal ability, and they must fulfill other
constitutional mandates. Id. See also Poats v. Given, 651
F.2d 495 (7th Cir. 1981) (upholding Indiana’s exclusion of
applicants who had previously failed the bar examination
four times).
The Admission Rules are an exercise of the Indiana
Supreme Court's rule-making authority. For the purposes
of constitutional inquiry, courts treat the Rules as legisla-
tion. See, e.g., Salibra v. Supreme Court of Ohio, 730 F.2d
1059, 1062 n.5 (6th Cir. 1984), cert. denied, 469 U.S. 917
(1984). Analysis of Indiana’s Rule 6 must therefore pro-
ceed under equal protection and commerce clause stan-
dards. Our review of such matters is de novo. Harris Trust
& Savings Bank v. E-II Holdings, Inc., 926 F.2d 636, 641 n.17
(7th Cir. 1991).
ITf.
Scariano first asserts that Rule 6 violates the Equal
Protection Clause. The predominant practice require-
ment, he claims, draws an arbitrary distinction between
classes of out-of-state practitioners by focusing on the
relative sizes of their out-of-state practices.4 Because a
4 We use the term “out-of-state practitioners” throughout
this opinion to refer to attorneys licensed to practice law in
states other than Indiana. The term has nothing to do with an
attorney’s residence; nor does the term suggest that an attorney
has not yet practiced in Indiana on a conditional basis.
App. 6
state need not tailor classifications perfectly when funda-
mental rights are not implicated, we cannot accept Scar-
iano’s equal protection challenge.
The first step in equal protection analysis is to deter-
mine the standard of scrutiny to which Indiana’s Rules
are subject. The right to practice law without taking a bar
examination is not a fundamental right for equal protec-
tion purposes. Lowrie v. Goldenhersh, 716 F.2d 401, 412 (7th
Cir. 1983). Given the absence of both a fundamental right
and a suspect class, rational basis review applies. Schu-
macher v. Nix, 965 F.2d 1262, 1266 (3d Cir. 1992). Other
courts considering equal protection challenges to state
bar rules have consistently applied rational basis review.
Id. at 1268 (citing cases). Therefore, we will assess the
validity cf Rule 6 under rationality review.
Under the rational basis test, a law is entitled to a
presumption of validity. Parnham v. Hughes, 441 U.S. 347,
351 (1979). A court will not disturb the law as long as it is
rationally related to a legitimate government interest.
Schumacher, 965 F.2d at 1269. Therefore, Indiana need
make only two showings. First, the State must point to a
legitimate state interest. Second, it must demonstrate
Rule 6's rational relation to that interest.
States unquestionably have a legitimate interest in
insuring the competence of attorneys practicing within
their borders. Sestric v. Clark, 765 F.2d 655, 663 (7th Cir.
1985); Lowrie, 716 F.2d at 408. Given the information
barriers that many clients face in choosing attorneys, a
state’s desire to regulate the profession is understand-
able. Sestric, 765 F.2d at 663 (quoting Bates v. State Bar of
Arizona, 433 U.S. 350, 383 (1977)). For these reasons,
App. 7
courts treat state efforts to preserve professional integrity
with deference. Schumacher, 965 F.2d at 1269.
The district court found that Rule 6 purports to serve
two interests. First, Rule 6 is designed to “force famil-
iarity with Indiana law.” Second, the rule seeks to main-
tain “the quality of those persons admitted to practice
law.” We have previously identified these interests as
legitimate; Scariano does not derogate their importance.
Instead, Scariano attacks Rule 6(3)’s claimed ratio-
nality. The requirement that an attorney licensed out-of-
state practice predominately in Indiana (that is, more
than the attorney practices in other states) is not, he
asserts, rational. The comparison between practice in
Indiana and practice elsewhere is purportedly not proba-
tive of an attorney’s familiarity with Indiana law. Instead,
the State should require a fixed quantum of experience
with Indiana law. By requiring a given measure of experi-
ence in Indiana law, Indiana can avoid a disparity in
knowledge among out-of-state practitioners gaining
admission.
The claimed flaw in the required comparative assess-
ment arises from the possible admission of an attorney
only marginally familiar with Indiana law. This might
occur, it is claimed, because such an attorney might have
a relatively small out-of-state practice. An attorney more
experienced in Indiana law, on the other hand, might be
denied admission due to a larger out-of-state practice (as
apparently happened with Scariano himself). The present
rule thus fails to guard against inequalities in admission.
Attorneys less well-versed in Indiana’s particularities
might gain admission while those knowing more about
App. 8
Indiana law might be required to take the bar examina-
tion. Although these may indeed be dangers, they do not
signal the demise of Rule 6 under rational basis review.
Rationality does not require that a rule be the least
restrictive means of achieving a permissible end. Lowrie,
716 F.2d at 401; Schumacher, 965 F.2d at 1273. The general
wisdom of Indiana’s approach is not a matter for this
Court’s scrutiny. A given bar admission rule need not be
the most effective means of regulating bar admission.
Lowrie, 716 F.2d at 401. Scariano’s complaints about the
required comparative assessment are thus wide of the
constitutional mark.> Nor is it relevant that some unfair-
ness results from the application of the rule. Schumacher,
965 F.2d at 1273. Scariano may in fact be more qualified
than others (with smaller out-of-state practices) who have
gained admission under the predominant practice
requirement. This circumstance, however, is not disposi-
tive. Under rational basis review, some slippage is per-
missible.
Scariano, however, insists. He suggests that we can
find irrationality if we confine our focus to the predomi-
nant practice requirement and ignore the rest of Rule 6.
We cannot accept Scariano’s suggestion. To do so would
import least restrictive means analysis into rationality
5 Scariano also complains of a related matter: The Indiana
practice requirement is satisfied simply by the representation of
Indiana clients - a matter plausibly having little to do with an
attorney’s familiarity with Indiana law. This matter, like the
comparative assessment complaint, is little more than circum-
spection inappropriate for rational basis review.
App. 9
review by artificially analyzing Rule 6’s various compo-
nents.
This approach is unnecessarily narrow. Under it, we
would have to focus on licensed attorneys with large out-
of-state practices to find unfairness. Rule 6’s scope is,
however, broader. The rule applies to all out-of-state
practitioners seeking admission without bar passage. In
many applications, the rule will work as intended: out-of-
State practitioners seeking admission will become ade-
quately familiar with Indiana law before being admitted
to the state bar. If the largest portion of an attorney’s
practice is in one state, that attorney has a strong incen-
tive to master the law of that state. Sestric, 765 F.2d at 661.
Such will be the case, more often than not, in Indiana. We
cannot ignore this result in favor of a narrow approach
that focuses only on the possible inequities of the pre-
dominant practice requirement. Courts evaluating bar
rules may not proceed by such narrow inquiries. See
Schumacher, 965 F.2d at 1272 (refusing to focus on the
irrational instance of a reciprocity rule as applied to
graduates of unaccredited law schools and focusing
instead on the rule’s application to all graduates).
As we have suggested, a different approach would
import a least restrictive means analysis into rational
basis review. Scariano is essentially arguing that Rule 6
could accomplish its goal of familiarity more effectively —
by eliminating the predominant practice requirement’s
comparative assessment. Indiana, however, fashioned a
rule that substitutes practical experience for the academic
showing required by the bar exam. As noted by the
district court, this rule accomplishes its goal of familiarity
App. 10
with state law. Taking Rule 6 apart for piecemeal assess-
ment avoids the very point of a rational basis inquiry.
Scrutinizing the various components of a given rule is
tantamount to demanding universal effectiveness or
mathematical exactitude. This heightened approach is
impermissible.
Indiana identified a legitimate state interest in its
desire to regulate bar admission. Rule 6 provides a ratio-
nal mechanism for attaining that goal. In light of the
deference accorded under rational basis review, we can-
not say that Rule 6 violates the Equal Protection Clause.
IV.
Scariano also asserts a Commerce Clause challenge.
He claims that the predominant practice requirement dis-
criminates against interstate commerce. By tying bar
admission to varying levels of a practitioner’s out-of-
state practice, Indiana allegedly manipulates the amount
of that out-of-state practice. Because we believe any dis-
criminatory effects are mitigated by offering the bar exam
as an alternative means of admission, we find that Rule 6
does not offend the Commerce Clause.
Two tests govern the validity of state law under the
dormant Commerce Clause. Government Suppliers Consol-
idating Services, Inc. v. Bayh, 975 F.2d 1267, 1276 (7th Cir.
1992). One test applies when the state regulation is
facially neutral and has only an indirect effect on out-of-
state commerce. Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970). Under the Pike test, a state regulation will be
upheld unless the burden imposed is “clearly excessive in
relation to the putative local benefits.” 397 U.S. at 142. A
App. 11
second test applies when the state regulation is discrimi-
natory, either facially or in practical effect. Brown-Forman
Distillers Corp. v. New York Liquor Authority, 476 U.S. 573,
579 (1985); Government Suppliers, 975 F.2d at 1277. The
second test requires that the discrimination be justified
by reasons unrelated to economic protectionism. Govern-
ment Suppliers, 975 F.2d at 1277. Application of the second
“test” almost invariably results in a state statute’s
invalidation. Brown-Forman, 476 U.S. at 579.
Given that the two tests produce such disparate
results, a great deal turns on the determination of which
test is to apply. This, naturally, the parties dispute. Both
the district court and Indiana’s Board believe the rule
should be upheld under the Pike balancing test. Scariano,
on the other hand, maintains that Rule 6 overtly discrimi-
nates.
Rule 6’s predominant practice requirement insists
that a practitioner’s in-state practice be greater than his
out-of-state practice to gain admission to Indiana’s Bar;
otherwise, the out-of-state practitioner must sit for the
bar exam. Scariano believes that this arrangement invari-
ably results in a limitation on an attorney’s out-of-state
practice: would-be Indiana attorneys will give up lucra-
tive multistate practices rather than take the bar exam.
Such, in Scariano’s view, is the very essence of the extra-
territorial reach condemned in Healy v. Beer Institute, Inc.,
491 U.S. 324, 336 (1988). Further, the predominant prac-
tice requirement allegedly fails to regulate evenhandedly:
given the class of out-of-state practitioners, those with
substantial multistate practices are made to take the bar
exam while those practicing predominantly in Indiana
waive in, freed from exam headaches. Such disparate
App. 12
treatment allegedly imposes an unreasonable burden on
some out-of-state practitioners.
Scariano’s claims have some appeal. Only by dimin-
ishing an out-of-state practice can an attorney take
advantage of Indiana’s predominant practice require-
ment. Rule 6 thus plausibly threatens reverberations
beyond Indiana’s borders. The rule also clearly imposes
differential burdens on attorneys practicing more out of
state than in state: only the out-of-state group is asked to
take the bar exam. None of the cases relied upon by the
Indiana Board analyze an admission rule that requires a
similar comparative assessment or accords different treat-
ment based on the level of out-of-sate practice.© These
arguments thus might seem compelling under the Com-
merce Clause. See, e.g., K-S Pharmacies Inc. v. American
Home Products Corp., 962 F.2d 728, 730 (7th Cir. 1992)
(noting that “[a]ny statute of the form ‘charge in this state
the same price you charge outside of it’ carries the
implied command: ‘Charge outside this state the same
price you charge inside it’ ”).
© Although the Fourth Circuit upheld a similar rule in Gold-
farb v. Supreme Court of Virginia, 766 F.2d 859 (4th Cir. 1985),
Virginia’s requirements are less stringent and the rule is not
apparently enforced. The Virginia rule grants admission with-
out examination to applicants who intend “to practice full-time”
in Virginia. 766 F.2d at 860-61. This rule, however, is interpreted
to require only that an applicant open a law office in Virginia
and engage regularly in practice there. In Re Brown, 191 S.E.2d
812, 815 n.3 (Va. 1972). Further, Virginia has no enforcement
mechanism to monitor compliance with the full-time practice
requirement. Friedman v. Supreme Court of Virginia, 822 F.2d 423,
429 (4th Cir.), aff'd, 487 U.S. 59 (1988).
App. 13
The existence of an alternative means of bar admis-
sion is fatal to Scariano’s claim, however. Scariano can
obtain what he wants - in addition to maintaining his
lucrative out-of-state practice - simply by sitting for the
bar examination. Viewed against the backdrop of a
requirement that the great mass of practicing attorneys
are obliged to suffer, his allegations of discrimination and
extraterritorial effect lose force. The claimed extrater-
ritorial effects disappear any time an out-of-state practi-
tioner chooses to gain admission by sitting for the bar
exam. The requirement that an applicant sit for the bar
exam can hardly be deemed discriminatory when the vast
majority of Indiana attorneys have taken that exam. In
the past, this Court has found the exam alternative signif-
icant under the Commerce Clause. See Sestric, 765 F.2d at
658-62. That factor is still relevant here.”
Rule 6’s alleged extraterritorial effects are hardly ce:-
tain. One might guess that attorneys with lucrative out-
of-state practices will give up those practices rather than
sit for Indiana’s bar exam. But this is pure speculation.
? Scariano suggests that Sestric is of dubious weight after
the Supreme Court’s ruling in Supreme Court of Virginia v. Fried-
man, 487 U.S. 59 (1988). In Friedman, the Supreme Court invali-
dated a residency requirement parallel to that upheld in Sestric.
We do not, however, rely on Sestric’s commentary about the
validity vel non of residency requirements. The present case has
nothing to do with state residency; it instead involves a practice
requirement — something that has a much more tenable connec-
tion to familiarity with a state’s law (and poses no threat to the
Privileges and Immunities Clause). We look to Sestric to deter-
mine the import of an alternative means of bar admission under
Commerce Clause analysis. The Supreme Court did not tackle
this particular issue in Friedman.
App. 14
We have previously refused to attach significance to spec-
ulative claims of what might happen under a given bar
admission rule. In Sestric, we noted that it was “a matter
of conjecture whether the requirement of taking and pass-
ing a bar exam would actually exclude many lawyers
having a serious desire” to practice in a given state. 765
F.2d at 659. The same considerations are dispositive here.
It is not entirely clear that the specter of the bar exam
is sufficient to frighten an attorney away from a finan-
cially satisfying out-of-state practice. More likely than
not, Indiana adopted the provision with a view to conve-
nience. Those out-of-state practitioners contemplating
relocation to Indiana (for whatever reason) now have a
mechanism to ease their transition to that State. Claims
that Indiana intended to induce attorneys into giving up
multistate practices in favor of setting up shop within the
state are without merit given the alternative of the bar
exam. See Lowrie, 716 F.2d at 414. At most, Rule 6 might
have some effect at the margin: those attorneys who, after
a year under conditional admission, have Indiana prac-
tices approaching the size of practices out-of-state might
be influenced by the promise of avoiding the bar exam.
But this effect — if any —- is de minimis.
Allegations of discrimination also fail in the face of a
universal bar exam requirement. Indiana abides by the
default rule that those wishing to practice within its
borders must pass its bar exam. The State makes an
exception to this universal rule for out-of-state practi-
tioners whose practices shift predominately to Indiana.
Essentially, Indiana has decided to confer a “benefit” on
this particular group of out-of-state practitioners. That
State also decided, however, to exclude Scariano from the
App. 15
group receiving the benefit. Scariano claims that the deci-
sion to make him sit for the bar exam imposes a “burden”
upon him. Yet the only way to imagine a “burden” is by
ignoring the vast remainder of Indiana’s attorneys; they
must suffer this bar exam as well.
Indiana does treat Scariano differently from the group
of out-of-state practitioners happening to have a predom-
inant Indiana practice. Whether we characterize this
treatment as a “benefit” to those out-of-state practitioners
or a “burden” on Scariano is immaterial. Because Indiana
accords Scariano treatment equal to that which it accords
to the vast majority of attorneys wishing to practice
within its borders, no discrimination can be said to exist.®
See Government Suppliers, 975 F.2d at 1279 (quoting Hunt
v. Washington State Apple Advertising Comm'n, 432 U.S.
333, 351 (1977)) (“Discrimination may take the form of
‘raising the costs of doing business’ for out-of-state enti-
ties, ‘while leaving those of their in-state counterparts
unaffected.’ ”).
Notice that we do not suggest that Indiana has carte
blanche to regulate merely because it could require the
bar exam from everyone if it chose. Courts have found
such reasoning persuasive in the past. See, e.g., Shapiro v.
Cooke, 552 F. Supp. 581, 588 (N.D.N.Y. 1982). There is also
some authority suggesting that reasoning like this is
® Scariano might still complain about being asked to take
two bar exams — one more than the average practitioner who
stays in his home state. This claim is invalid for the reason that
Scariano, unlike the average stay-at-home practitioner, wishes
to practice in two states. “It is not obviously unreasonable to
make him take a second bar exam.” Sestric, 765 F.2d at 660.
App. 16
unobjectionable in the context of the Commerce Clause
despite being problematic in other constitutional frame-
works. Goldfarb v. Supreme Court of Virginia, 766 F.2d 859,
864 (4th Cir. 1985) (distinguishing the Commerce Clause
from the Equal Protection Clause and “includ[ing] the
examination alternative in our Commerce Clause calculus
although ignor[ing] it for equal protection purposes”).
Our brush strokes are not quite so broad. We hold only
that claims of discrimination and extraterritorial effect
must be assessed in light of the circumstances from which
they arise. This formulation is not foreign to Commerce
Clause analysis, where “the critical consideration is the
overall effect of the statute... .” Brown-Forman, 476 U.S.
at 579.
We cannot analyze the predominant practice require-
ment in a vacuum. The claimed extratteritorial effect is
neither certain nor probable in the instant case. The cases
upon which Scariano relies, however, all deal with stat-
utes having a profound and inevitable effect. Brown-For-
man, 476 U.S. at 580, and Healy, 491 U.S. at 337-39, both
struck down liquor price affirmation statutes requiring
sellers to affirm that prices within the state were no
higher than prices outside it. The operation of the statutes
could not be avoided if one wanted to sell liquor within
the respective states; an extraterritorial impact was thus
inevitable. Similarly, in Government Suppliers, 975 F.2d at
1279, a backhaul ban on municipal waste invariably
increase the cost of importing that waste; refraining from
backhauling was the only means of avoiding this
increased cost.
The present case is distinguishable. The existence of
the exam alternative renders the alleged extraterritorial
App. 17
reach of the predominant practice requirement specula-
tive at best. Requiring an out-of-state practitioner to take
the bar exam most assuredly imposes a cost on that
practitioner; but it is a cost borne by the majority of
Indiana lawyers. The fact that nearly everyone — partic-
ularly state residents with a political voice - labors under
the same yoke negates any claims of discrimination.
Because we find that Indiana’s Rule 6 has only an
incidental effect on interstate commerce, Pike’s balancing
test applies. Hass v. Oregon State Bar, 883 F.2d 1453, 1462
(9th Cir. 1989). Rule 6 thus survives unless Scariano can
demonstrate that the “burden is clearly excessive in rela-
tion to the putative local benefits” of the rule. Pike, 397
U.S. at 142. We have previously noted the legitimacy of
the state’s interest in regulating the legal profession. Ses-
tric, 765 F.2d at 664. The strength of that interest hardly
changes for the purposes of Commerce Clause analysis.
See Goldfarb, 766 F.2d at 865. The requirement that a
practitioner wishing to practice in two states take the bar
exam in both states is not excessive in light of the state’s
interest in regulating the profession.
V.
Indiana has chosen to waive the bar exam require-
ment for a certain class of out-of-state practitioners. Scar-
iano takes exception to the manner in which that class is
defined. Yet the means Indiana has chosen to insure
familiarity with its law are not so egregious as to offend
the Constitution. Given the need to maintain the quality
of the legal profession, a judgment that practicing pre-
dominantly in Indiana more often than not insures the
App. 18
desired level of familiarity with state law is not unreason-
able.
For these reasons, the judgment of the district court
is
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
App. 19
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTHONY G. SCARIANO,
Plaintiff,
— Cause No.
Vs. IP 93-606-C
JUSTICES OF THE SUPREME
COURT OF THE STATE OF
INDIANA; and MEMBERS OF THE
STATE BOARD OF LAW
EXAMINERS OF THE STATE OF
INDIANA,
eee eee eee ee
Defendants.
ENTRY GRANTING MOTION TO DISMISS
AND DIRECTING ENTRY OF JUDGMENT
Introduction
States have a constitutionally permissible and sub-
stantial interest in regulating bar admission. In re
Griffiths, 413 U.S. 717, 723 (1973). The Supreme Court has
recognized “the traditional authority of state courts to
control who may be admitted to practice before them,”
Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979) and “their broad
power to establish standards for licensing practitioners
and regulating the practice of professions,” Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792 (1975). They may do
so, however, only so long as they “have a rational connec-
tion with the applicant’s fitness or capacity to practice
law.” Schware v. Board of Bar Examiners of New Mexico, 353
U.S. 232, 239 (1957).
App. 20
This case pits a challenge to an Indiana rule concern-
ing bar admission against the State’s interest in regulat-
ing and setting standards for admission. The challenger,
Mr. Scariano, cannot prevail in the circumstances pre-
sented here and hence his action must be dismissed.
The Complaint
Anthony Scariano was admitted to practice law in the
State of Illinois on April 30, 1975 and has been actively
engaged in the practice of law since that time. He has also
been admitted to practice before other courts, including
the United States Supreme Court. His office is in Chicago
Heights, Illinois, only a few miles from the Illinois-Indi-
ana border.
On March 4, 1991 Scariano was conditionally admit-
ted to practice law in Indiana based on his Illinois license.
He later sought renewal of his conditional admission. Ina
letter dated November 10, 1992 the State Board of Law
Examiners (“the Board”) informed Scariano that his con-
ditional license to practice law in Indiana was not
renewed because of his failure to demonstrate that he
“practiced predominantly in [Indiana during 1991... . ”
(Exhibit B to the Complaint).!
Scariano now challenges Rule 6(3) of the Indiana
Supreme Court Rules for Admission to the Bar and the disct-
pline of Attorneys (“Admission Rules”) and its interpreta-
tion by Indiana authorities. He contends that the Rule, on
1 Documents attached to the complaint are considered a
part thereof. Fed. R. Civ. P. 10(c); Hamilton v. O'Leary, 976 F.2d
341, 343 (7th Cir. 1992).
App. 21
its face and as applied, violates the Equal Protection
Clause of the Fourteenth Amendment and the Commerce
Clause of Article | of the Constitution. He also blends
into each of these arguments the suggestion that Rule 6(3)
unreasonably restricts his ability to travel. The action is
brought pursuant to 42 U.S.C. § 1983 and jurisdiction is
asserted to exist pursuant to 28 U.S.C. §§ 1331 and 1343.
Discussion
A. Indiana Admission Rule 6
“In Indiana, the Supreme Court has exclusive juris-
diction to admit attorneys to practice law.” Poats v. Givan,
651 F.2d 495, 496 (7th Cir. 1981), citing Admission Rule 3.
The current version of the Admission Rules provides that a
person may be admitted to practice in the courts of
Indiana by taking and passing the Indiana Bar Examina-
tion. There is an alternative procedure, established
through Rule 6, whereby a person may be conditionally
admitted based on his or her license to practice law in
another state if he or she meets several requirements.2
* The version of Rule 6 of these Rules, which became effec-
tive January 1, 1990 and which is challenged in this case, pro-
vides:
(1) a person who has been admitted to practice law
in the highest court of law in any other state. . . may
be conditionally admitted to practice law in Indiana
upon a finding by the State Board of Law Examiners
that said person has met each of the following condi-
tions:
(a) The applicant has actively engaged in the
practice of law for a period of at least five (5) of
the seven (7) years immediately preceding the
App. 22
One of these is that the applicant for conditional admis-
sion submit “an affidavit of the applicant’s intent to
engage actively and predominately in the practice of law
in Indiana.” Admission Rule 6(1)(g). An attorney admit-
ted on this basis may seek renewal of his or her condi-
tional admission each year for up to five (5) consecutive
years and will be granted renewal “upon the submission
of such verified individualized information as will dem-
onstrate to the satisfaction of the Board that the applicant
has during the past year been both (a) actively engaged in
the practice of law, and (b) predominately [sic] in Indi-
ana.” Admission Rule 6(3).
The Board interprets and applies the Rules. At the
time Scariano was first conditionally admitted to practice
date of application. “Engaged in the practice of
law” shall mean:
(i) regularly performing legal services for
the general public as a lawyer. .
(g) The applicant has filed along with the appli-
cation an affidavit of the applicant’s intent to
engage actively and predominately in the prac-
tice of law in Indiana.
(3) Said conditional admission on a foreign license
may continue in force for one year, and may be
renewed for a like period upon the submission of
such verified individualized information as will dem-
onstrate to the satisfaction of the Board that the appli-
cant has during the past year been both (a) actively
engaged in the practice of law, and (b) predominately
in Indiana. . . . Upon the fifth consecutive renewal
granted to the applicant, the admission to practice
shall be permanent.
sa
App. 23
law in Indiana, the Board’s interpretation of the predomi-
nant practice requirement was imprecise, but was repre-
sented to the plaintiff as not requiring that the applicant/
admittee spend more than 50 percent of his or her profes-
sional time in Indiana or more than 50 percent of his or
her professional time on matters pertaining to Indiana
law or pending in Indiana courts. On April 23, 1992 the
Board defined two key terms used in Rule 6 in the follow-
ing manner:
The term “in Indiana” means dealing with Indi-
ana law, representing Indiana clients, or han-
dling cases in Indiana courts, i.e., the applicant
must look to the substance of what he or she is
doing in the practice that relates to Indiana law
courts and clients rather than the physical loca-
tion of his office.
The term “predominantly” means that the indi-
vidual’s practice in Indiana must exceed, or be
equal to, his or her practice in any other juris-
diction.3
The Board’s adoption and application of these definitions
rendered the plaintiff ineligible for the renewal of his
conditional license to practice law in Indiana.
* The Supreme Court used the word “predominately.” The
Board defined the word “predominantly.” Although the two
terms are not synonymous, for the purpose of this Entry they
are used together to create what is termed “the predominant
practice requirement.” This is consistent with the usage the
parties have given to the two terms.
App. 24
B. Standard of Review
The facts recited in this Entry have been drawn
directly from the complaint and are assumed to be true
for the purpose of ruling on the defendants’ motion.
Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985)
(when ruling on a motion to dismiss, the court will “take
the allegations in the complaint to be true and view them,
along with the reasonable inferences to be drawn from
them, in the light most favorable to the plaintiff”). Dis-
missal is proper only if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
that would entitle him to the relief requested. Illinois
Health Care Ass'n v. Illinois Dept. of Public Health, 879 F.2d
286, 288 (7th Cir. 1989).
Additional facts, not in the complaint, have been
submitted and considered in connection with the Court’s
Entry of November 10, 1993. However, those materials
relate to the issue of subject matter jurisdiction over some
or all of the plaintiff’s claims and hence have not caused
the resolution of that issue to be considered under the
standard for summary judgment prescribed in Rule 56(c)
of the Federal Rules of Civil Procedure. Crawford v. United
States, 796 F.2d 924, 928-29 (7th Cir. 1986).
C. Rooker-Feldman
The plaintiff challenges Rule 6(3) “as applied.” This
means, One must assume, “as applied to him.” It
appeared in this sense, therefore, that the plaintiff was
challenging the ruling of the Indiana Supreme Court on
his particular application. A district court has no jurisdic-
tion to review such a ruling, even when dressed up as a
App. 25
civil rights suit. Ritter v. Ross, 992 F.2d 750 (7th Cir. 1993).
To do so would to run headlong into the Rooker-Feldman
doctrine, which “ ‘simply forbids federal district court
appellate review of state court judgments in the guise of
collateral attacks when no federal statute authorizes such
review.’ ” Id., 992 F.2d at 753, quoting James S. Liebman,
Apocalypse Next Time?: The Anachronistic Attack on Habeas
Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997, 2008
n.46 (1992).4 See also Guess v. Board of Medical Examiners,
967 F.2d 998, 1002-03 (4th Cir. 1992) (plaintiffs who lose in
state court may not “recast their claims in federal court
under the guise of federal constitutional claims that were
not raised or decided by the state court .. . if the constitu-
tional claims are inextricably intertwined with the merits
of the state court judgment.”).
Neither party initially addressed the relationship or
applicability of Admission and Discipline Rule 14(3) in
this situation. That Rule provides that a person aggrieved
by the final action of the Board through a refusal to
recommend the admission of an applicant to practice law
in Indiana for any reason other than failure to pass the
Bar Examination
may, within twenty (20) days of receipt of noti-
fication setting forth the reason for refus-
al... file a petition with the Supreme Court of
Indiana requesting review by this Court of such
final determination, and setting forth [the basis
for the Board’s error].
4 The Rooker-Feldman doctrine takes its name from two
major Supreme Court cases interpreting 28 U.S.C. § 1257, Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983).
App. 26
Upon receipt of such a petition the Board sends the
matter to the Indiana Supreme Court for a final deter-
mination. Based on the availability of this procedure and
uncertainty as to whether it had been followed, the Court
directed the parties to address whether the Rooker-Feld-
man line would be impermissibly crossed by reaching the
merits of the plaintiff’s claims.5 The supplemental mate-
rials supplied by the parties show that on November 13,
1992 the plaintiff wrote a letter to the Indiana Supreme
Court Administrator which he described as an appeal,
pursuant to Rule 14(3), of the revocation (actually the
non-renewal) of his Indiana license. He was informed by
return letter dated November 24, 1992 that the Supreme
Court had considered his appeal and that the appeal
“was denied 4-0, with Chief Justice Shepard not partici-
pating.” The Board’s Executive Director then wrote a
letter dated January 27, 1993 explaining that the plaintiff
needed to direct his appeal to the Indiana Supreme Court
and that the Board considered its decision of November
10, 1992 its final action. This letter was somewhat mis-
leading. The defendants have presented the following
explanation of their procedure on pages 6-7 of their con-
tentions filed November 29, 1993:
18. In answer to this Court’s specific concerns
regarding the proceedings before the Supreme
Court of Indiana, Defendants state that this case
> This is the sifting of the personal from the general to
determine which claims state general, facial attacks on state law
and which state claims attacking the specific applications of
state law. See e.g., Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir.
1983); Czura v. Supreme Court of South Carolina, 632 F. Supp. 267
(D.S.C. 1986).
tha adv AB sas ke 288 eae
App. 27
was not formally docketed; that no briefing
schedule was established, nor were briefs filed;
and that the decision of the Court to deny relief
to Mr. Scariano was made at a court conference
on November 24, 1992.
19. The Supreme Court of Indiana represents
that formal opening of a docket does not always
occur under the review provisions of Admission
and Discipline Rule 14(3) and that the Court
does render decisions based upon the file of the
Board of Law Examiners and letters such as
submitted by Mr. Scariano. As a matter of fur-
ther clarification, where the November 24, 1992
letter of Douglas Cressler, Assistant Administra-
tor of the Supreme Court, makes reference to the
“Petition” of Mr. Scariano, this refers to the
letter of November 13, 1992 submitted by Mr.
Scariano.
The decision of November 24, 1992 was thus the end of
the road for Scariano insofar as Rule 14(3) was concerned.
The two-prong test of Rooker-Feldman asks first
whether the appeal of the non-renewal of Scariano’s Indi-
ana license was a judicial proceeding, and second
whether Scariano’s claims are so inextricably intertwined
with that proceedings as to make review of the claims an
impermissible review of a state judicial proceeding. Leaf
v. Supreme Court of Wisconsin, 979 F.2d F.2d 589, 597 (7th
Cir. 1992), cert. denied, 113 S. Ct. 2417 (1993).
“A judicial proceeding . . . ‘investigates, declares and
enforces liabilities as they stand on present or past facts
and under laws supposed already to exist.” ’ Leaf, 979
F.2d at 596, quoting Feldman, 460 U.S. at 477. “A legisla-
tive proceeding, however, focuses on the future ‘and
App. 28
changes existing conditions by making a new rule to be
applied thereafter.” Id. Applying this test it is undeniable
that Scariano’s Rule 14(3) appeal was judicial in nature.
See Greening v. Moran, 953 F.2d 301, 305 (7th Cir.), cert.
denied, 113 S. Ct. 77 (1992) (attorney disciplinary proceed-
ing before state supreme court is judicial in nature).
This Court also finds that the second prong of the
test is present with respect to Scariano’s personal chal-
lenge to Rule 6(3) as applied. While his claim before the
Supreme Court was not elaborate and the decision by
that body essentially unexplained, a decision on the
application of the predominant practice requirement to
him was made and that decision cannot be reviewed here.
See Asarco Inc. v. Kadish, 590 U.S. 602, 622 (1989) (review
by the district court of the Arizona Supreme Court ruling
where “[that] action, in essence, would be an attempt to
obtain direct review of [a state supreme court's] decision
in the lower federal courts . . . would represent a partial
inroad on Rooker-Feldman’s construction of 28 U.S.C.
§ 1257”).
The plaintiff disclaims any effort here to obtain the
review which we have just demonstrated Rooker-Feldman
prohibits. Certainly consideration of the specific relief
requested will aid in determining what is being chal-
lenged and thus whether a district court has subject mat-
ter jurisdiction. Centifanti v. Nix, 865 F.2d 1422, 1429 (3rd
Cir. 1989) (citing Stern v. Nix, 840 F.2d 208 (3d Cir.), cert.
denied, 488 U.S. 826 (1988)). However, the complaint
alleges that the plaintiff suffered economic damage as the
result of the defendants’ decision. He challenges the Rule
and definitions pertaining to it “as applied.” Even though
he does not seek an injunction compelling the defendants
ie oi tah epee ae
App. 29
to issue the conditional license which they denied after
adopting the definition of “predominantly” practicing in
Indiana, these allegations are sufficiently specific to draw
into question the validity of the decision made by them
and made final on November 24, 1992.
Therefore, as in Leaf, the Court concludes that to the
extent the complaint is or can be construed as a challenge
to the November 24, 1992 denial of the plaintiff’s request
for renewal of his conditional license to practice law in
Indiana the action must be dismissed for lack of subject
matter jurisdiction.
The Court finds the situation otherwise, however, as
to the plaintiff’s general constitutional challenge to Rule
6(3) and the predominant practice requirement because
federal district courts “have subject-matter jurisdiction
over general challenges to state bar rules, promulgated
by state courts in nonjudicial proceedings, which do not
require review of a final state-court judgment in a partic-
ular case.” Feldman, 460 U.S. at 486. See also Schumacher v.
Nix, 965 F.2d 1262, 1266 n.6 (3rd Cir. 1992), cert. denied,
113 S. Ct. 1259 (1993). The Court therefore proceeds to
discuss each of the plaintiff’s challenges to Rule 6(3) and
the predominant practice requirement.
D. Equal Protection
The Admission Rules are an exercise of the Indiana
Supreme Court’s rule-making authority and hence
treated as legislation for equal protection purposes. E.g.,
Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062 n.5
(6th Cir. 1984), cert. denied, 469 U.S. 917 (1984). The first
order of business here, therefore, is to identify the correct
App. 30
standard of scrutiny to which the Admission Rules are
subject.
“As a general matter, economic and social legislation
is subject to rational basis review, under which a law
need only be ‘rationally related to a legitimate state inter-
est.’ ” Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir. 1992)
(quoting City of New Orleans v. Dukes, 427 U.S. 297, 303
(1976) (per curiam) (footnote omitted)). Scariano argues
that a higher standard is applicable, but his arguments in
this respect are unpersuasive. The right to practice law
without taking a bar examination is not a fundamental
right for equal protection purposes. Lowrie v. Goldenhersh,
716 F.2d 401, 412 (7th Cir. 1983). Further, the “Constitu-
tion does not require that because a lawyer has been
admitted to the bar of one State, he or she must be
allowed to practice in another.” Leis v. Flynt, 439 U.S. 438,
443 (1979).
In Lowrie, the Seventh Circuit concluded that the
rational basis test was the proper standard to be applied
to the challenge to an Illinois bar admission rule. Lowrie
represents the great weight of authority which applies
only the rational basis test to state bar admission require-
ments or restrictions. Schumacher v. Nix, 965 F.2d at 1268
(citing cases).
In Goldfarb v. Supreme Court of Virginia, 766 F.2d 859,
862 (4th Cir. 1985), cert. denied, 474 U.S. 1086 (1986), the
plaintiff chailenged the constitutionality of Virginia Bar
Admission Rule 1A:1(d). Rule 1A:1(d) required that an
applicant for admission to the Virginia bar “[i]ntend[] to
practice full-time as a member of the Virginia bar.” Both
App. 31
the district court and the Fourth Circuit rejected the chal-
lenges to this rule.
Goldfarb explained that the full-time practice require-
ment had already challenged. “[A] three-judge federal
panel upheld the rule . . . finding that the [full-time
practice] requirement rationally served the interest of
Virginia in insuring the competence of attorneys practic-
ing in the Commonwealth.” Goldfarb, 766 F.2d at 862,
citing Brown v. Supreme Court of Virginia, 359 F. Supp. 549,
561-62 (E.D. Va.), aff'd mem., 414 U.S. 1034 (1973). The
summary affirmance by the Supreme Court “authori-
tatively [established] . . . that a rational basis lay beneath
Rule 1A:1(d). ...” Id.
The similarities between this case and Goldfarb are
striking. Goldfarb speaks directly to the challenge which
Scariano makes here by addressing “directly . . . the
attorneys’ amount of practice in other states.”° The rea-
son for the full-time practice requirement, moreover, was
obviously to ensure familiarity with state law for those
attorneys desiring to practice without passing the bar
6 It would appear that the full-time practice of law in Vir-
ginia leaves no opportunity to practice elsewhere. However, the
Virginia Supreme Court interprets the full-time practice require-
ment of Rule 1A:1(d) to mean that an applicant must show that
he intends to open an office in Virginia for the practice of law
and to engage regularly in the practice of law in Virginia. In Re
Brown, 191 S.E.2d 812, 815 n.3 (Va. 1972). Ironically, however, it
was noted in a later case that “Virginia has established no
enforcement machinery to monitor compliance with its full-time
practice requirement.” Friedman v. Supreme Court of Virginia, 822
F.2d 423, 429 (4th Cir. 1987).
App. 32
examination. This was “surely a legitimate state pur-
pose.” Goldfarb, 766 F.2d at 862.
Although the plaintiff may point to his case as an
example of the Rule resulting in inequality in some fash-
ion, incidental individual inequality does not make such
rules offensive to the Fourteenth Amendment. Martin v.
Walton, 368 U.S. 25, 26 (1961). Indiana has not required
that a bar applicant (under Rule 6(3) or otherwise)
become a resident or even maintain an office in this State.
Also, the wisdom or efficacy of the predominant practice
requirement is a subject beyond judicial fiat. As stated in
Lowrie, “[u]nder the mere rationality level of review, it is
of no moment that the rule is not the least restrictive
means to a permissible end, and . . . may not be the best
way to ensure character and fitness.” Lowrie, 716 F.2d at
409. This point was also made in Goldfarb:
We recognize that Goldfarb’s experience and
familiarity with state law may be such that the
full-time practice requirement is unnecessary to
guarantee that he would ably serve the clients
and courts that would depend on him in Vir-
ginia. But surely he suffers no more from the
presumptions of Rule 1A:1(d) than he did his
counterpart in Martin v. Walton, 368 U.S. 25, 7 L.
Ed. 2d 5, 82 S. Ct. 1 (1961). The petitioner in that
case lived in Kansas and practiced in Kansas
City, Missouri. A Kansas rule required him, as a
part-time practitioner, to affiliate with local
counsel for his Kansas appearances even though
he had passed the Kansas bar examination, had
published an article on Kansas procedure, and
had served as city attorney for his Kansas town
and as a member of the Kansas Board of Tax
Appeals. See Martin v. Davis, 187 Kan. 473, 357
App. 33
P.2d 782 (1960). The Supreme Court dismissed
his due process challenge to the Kansas rule for
want of a substantial federal question, holding
that the full-time practice requirement — both on
its face and as applied - was “not beyond the
allowable range of state action under the Four-
teenth Amendment.” Martin v. Walton, 368 U.S.
at 25-26. The same deference to state regulation
is appropriate here. Our role is not to conduce
an individual inquiry into Goldfarb’s qualifica-
tions; Virginia offers a special hearing on that
question through its bar examination. Our role
is instead to determine whether Virginia has
adopted a rational approach to the serious prob-
lem of attorney incompetence. We can only con-
clude that it has.
766 F.2d at 862. Therefore, Rule 6 is not violative of the
Equal Protection Clause merely because there may be a
better, more direct way of ensuring the competence of
attorneys who apply for admission under the rule or
because the rule may work an unfair hardship in a partic-
ular case. See Whitfeld v. Illinois Board of Law Examiners,
504 F.2d 474, 476 (7th Cir. 1974). Indiana’s predominant
practice requirement forces familiarity with Indiana law.
This fosters the State’s legitimate interest in regulating
and maintaining the quality of those persons admitted to
practice law and this rationale is sufficient to show that
the challenged rule does not violate the Equal Protection
Clause. See Sestric v. Clark, 765 F.2d 655, 663 (7th Cir.
1985), cert. denied, 474 U.S. 1086 (1986).
When applying the rational basis test a court is free
to uphold a classification based upon “a[ny] state of facts
that reasonably can be conceived to constitute a distinc-
tion or difference in State policy. ...” Allied Stores v.
App. 34
Bowers, 358 U.S. 522, 530 (1959). Those facts are more than
evident from the face of Rule 6(3). On the basis of the
foregoing, therefore, the Court cannot conclude that
Admission Rule 6 is not rationally related to a legitimate
state interest. It thus survives the plaintiff’s equal protec-
tion challenge.
E. Right to Travel
Although not asserted as a separate count in the
complaint, Scariano asserts that the “predominant prac-
tice requirement .. . burdens the right to travel protected
by the Constitution. ... ” (Paragraph 26). The right of
citizens to be free from unreasonable restrictions on their
ability to travel interstate is drawn from Article IV, Sec-
tion 2, of the Constitution and Section I of the Fourteenth
Amendment. See, e.g., Shapiro v. Thompson, 394 U.S. 618
(1969). The practice of law, however, is not a fundamental
right or activity. Leis v. Flynt, 439 U.S. 438, 444 (1979).
A state law implicates the right to travel when it
actually deters such travel, when impeding travel is its
primary objective, or when it uses any classification
which serves to penalize the exercise of that right. Attor-
ney General of New York v. Soto-Lopez, 476 U.S. 898, 903
(1986). Although Scariano would have this Court believe
that the predominant practice rule directly restricts the
multi-state practice of law and is therefore an impedi-
ment to his right to travel, this is not a conclusion with
which the Court agrees. As explained in Lowrie, 716 F.2d
at 412, “[rjequiring Lowrie to sit for and pass the bar
examination does not amount to a denial of a basic neces-
sity of life . . . nor does it infringe on a fundamental
Wioliinianateist tne tise we aret
App. 35
right.” The Court does not find that the right to travel has
been implicated as a result of Rule 6. Even if implicated,
there is no allegation that impeding travel is the primary
objective of Rule 6, nor is there an allegation that Rule 6
uses any classification which serves to penalize the exer-
cise of Scariano’s right to travel. Simply stated, Admis-
sion Rule 6 provides attorneys such as the plaintiff with
an alternative to sitting for the Indiana Bar Examination.
If that alternative is not appealing to him, he may pursue
the other route: sit for the Indiana Bar Examination. The
requirements of Admission Rule 6 do not violate the right
to travel.
F. Interstate Commerce Clause
The plaintiff claims that the predominant practice
requirement unreasonably burdens interstate commerce.
Article I, Section 8 of the Constitution grants Congress
the power to regulate commerce among the states. When
a state law directly regulates or discriminates against
interstate commerce, or when its effect is to favor in-state
economic interests over out-of-state interests, the law is
generally to be invalidated. Brown-Forman Distillers Corp.
v. New York State Liquor Authority, 476 U.S. 573, 579 (1986).
A pertinent test was announced in Pike v. Bruce Church,
Inc., 397 U.S. 137, 142 (1970), where the Supreme Court
indicated that a statute will be upheld where effects on
interstate commerce are incidental “unless the burden on
such commerce is clearly excessive in relation to the
putative local benefits.”
As with most bar admission requirements in most
jurisdictions, the “putative local benefit” of Rule 6(3) is
App. 36
that persons admitted to practice law in Indiana without
having first taken its bar examination are nonetheless
familiar with Indiana law. This is an important state
interest and it does not appear that the plaintiff could
demonstrate that the burden on commerce is “clearly
excessive” in relation to that purpose.
Scariano also concedes that if all attorneys were
required to pass the bar examination, the effect on inter-
state commerce would only be indirect. Goldfarb made a
similar concession. Such a concession dooms this argu-
ment to failure. “If a state may constitutionally require all
applicants to take the examination, the Commerce Clause
is not offended by a rule which permits some, but not all,
out-of-state attorneys to be admitted on waiver of the
examination.” Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y.
1982), aff'd, 702 F.2d 46 (2d Cir. 1983). See also Attwell v.
Nichols, 466 F. Supp. 206 (N.D.Ga. 1979), aff'd, 608 F.2d
228 (5th Cir. 1979), reh’g denied, 612 F.2d 579 (5th Cir.
1979).
Scariano makes the untenable assertion that the rule
in Goldfarb “did not speak directly to the attorneys’
amount of practice in other states and was viewed only as
a requirement of a minimum level of practice in Vir-
ginia.” (Plaintiff’s Memorandum in Opposition to Motion
to Dismiss, page 21). The reason the Court finds this
contention untenable bears further discussion.
Even treating Virginia’s full-time practice rule as only
a requirement of a minimum level of practice in Virginia,
it is incongruous for him to also argue that Indiana’s less
onerous predominant practice requirement “directly, sig-
nificantly, unjustifiably, and unreasonably interferes with
App. 37
interstate commerce.” (Complaint, paragraph 30). “The
| state can hardly be penalized for offering a choice
between a requirement it can concededly exact and one
that many attorneys may find less onerous.” Goldfarb, 766
F.2d at 863.
Conclusion
States have the authority to cause individuals desir-
| ing to practice law to meet certain minimum require-
| ments as a means of ensuring that those who practice law
| in a given state are competent to do so. “The reason why
preparatory study, educational qualifications, experience,
examination and license by the courts are required, is not
to protect the bar . . . but to protect the public.” People v.
Alfani, 125 N.E. 671, 673 (N.Y. 1919). See also Crosetto v.
State Bar of Wisconsin, 12 F.3d 1396 (7th Cir. 1993) (reaf-
firming that “the regulation of the activities of the bar is
at the core of the State’s power to protect the public. ...
Few other professions are as close to the core of the
State’s power to protect the public. Nor is any trade or
other profession as essential to the primary governmental
function of administering justice.” (quoting Hoover v. Ron-
win, 466 U.S. 558, 569 n.18 (1984)).
— eee ee eee aaa a —_
Although the requirements for conditional bar
admission in Indiana under Admission Rule 6(3) may
| have certain indirect consequences, these do not rise to
| the level of an Equal Protection violation, a violation of
the Interstate Commerce Clause or a violation of the
Right to Travel. Accordingly, the Court finds that the
defendants’ motion to dismiss must be granted and the
complaint dismissed for failure to state a claim upon
a
App. 38
which relief can be granted. Finding no possible amend-
ment which would salvage the plaintiff’s claims, the
Court also directs the entry of judgment dismissing the
cause of action with prejudice. However, to the extent
that the complaint can be construed to challenge the
Indiana Supreme Court’s actual decision in Scariano’s
case, this action must be dismissed for lack of subject
matter jurisdiction.
ALL OF WHICH IS ORDERED this 25th day of
March 1994.
/s/ Sarah Evans Barker
SARAH EVANS BARKER,
Chief Judge
United States
District Court
Copies to:
Anthony G. Scariano
Scariano, Kula, Ellch and Himes
1450 Aberdeen
Chicago Heights, IL 64011
David C. Campbell
Karl L. Mulvaney
2700 Market Tower
10 West Market Street
Indianapolis, IN 46204-2982
App. 39
IN THE
UNITED STATES COURT OF /.PPEALS
FOR THE SEVENTH CIRCUIT
No. 94-1783
ANTHONY G. SCARIANO,
Plaintiff-Appellant,
v.
JUSTICES OF THE SUPREME CouRT
OF THE STATE OF INDIANA;
and MEMBERS OF THE
StaTE Boarp oF Law
EXAMINERS OF THE
STATE OF INDIANA,
Defendants-Appellees.
On Petition for Rehearing and Rehearing En Banc
REHEARING and SUGGESTION for
REHEARING EN Banc Deniep — FEBRUARY 2, 1995
Before Posner, Chief Judge, Cummincs, Correy, FLAuM,
EASTERBROOK, RippLe, MANION, KANNE and ROvNER, Circuit
Judges.
On November 9, 1994, the petitioner filed a petition
for rehearing with suggestion for rehearing en banc. An
answer to the petition was requested and filed. All of the
judges on the original panel, Cummincs, Bauer, and Cup-
Any, Circuit Judges, voted to deny a rehearing. A judge in
regular active service requested a vote on the suggestion
App. 40
for rehearing en banc and the majority of the judges
voted to deny an en banc rehearing. Posner, Chief Judge,
FLaum and Rovner, Circuit Judges, voted to grant rehear-
ing. Accordingly, the petition for rehearing is hereby
DENIED.
Posner, Chief Judge, dissenting from denial of rehear-
ing en banc. The commerce clause of Article I of the
Constitution has been interpreted to forbid states to erect
unreasonable barriers to interstate trade, and “trade” for
these purposes includes the practice of law. Sestric v.
Clark, 765 F.2d 655, 661 (7th Cir. 1985). The Indiana rule
which the panel’s decision upholds places a kind of tax
on the practice of law in other states by permitting a
lawyer to practice in Indiana without taking and passing
the Indiana bar exam if the lawyer’s practice is more than
50 percent “in Indiana.”
To see the effect of the rule, compare, first, two
lawyers, each of whom is licensed in Illinois and practices
in both Illinois and Indiana. The first lawyer bills his
Illinois clients for 900 hours of work a year and his
Indiana clients for the same number. The second lawyer
bills his Illinois clients for 500 hours and his Indiana
clients for 800. The second lawyer can gain admission to
the Indiana bar without taking the Indiana bar exam. The
first cannot, even though he has the larger Indiana prac-
tice. He will have an incentive to reduce the Illinois
component of his practice in order to become eligible to
join the Indiana bar without taking the bar exam.
When a state law is obviously protectionist — a tariff
would be the clearest example - it is generally found to
violate the commerce clause without further ado; in other
App. 41
cases, such as this, the test is whether the benefits of the
law in advancing some legitimate interest of the state
exceed the costs in impairing free trade among the states.
E.g., Brown-Forman Distillers Corp. v. New York State Liquor
Authority, 476 U.S. 573, 579 (1986); Bendix Auto-lite Corp. v.
Midwesco Enterprises, Inc., 486 U.S. 888, 891 (1988); Gov-
ernment Suppliers Consolidating Services, Inc. v. Bayh, 975
F.2d 1267, 1277-79 (7th Cir. 1992). The distortion of the
interstate practice of law brought about by the challenged
rule is small; for it is limited, as the panel stressed, by the
costs (mainly in time) of sitting for the Indiana bar exam.
But the benefits are not only slight; they are negligible,
because the rule is not designed to promote any legiti-
mate interest of the state.
States have an interest in assuring the minimum com-
petence of the lawyers who practice in their courts and
advise their citizens. Most economists would believe that
this interest could be best protected by allowing free
competition among lawyers. Indiana is not required to
subscribe to that belief. It can establish conditions for
admission to its bar that are designed, paternalistically, to
protect its citizens from falling into the clutches of incom-
petent or dishonest lawyers. It can, in particular, require
as a condition of admission to its bar that lawyers take
and pass its bar exam. The challenged rule establishes an
alternative condition. The alternative, which is probably
designed to give a break to lawyers who practice primar-
ily or even exclusively in Indiana but happen to live in an
adjacent state, allows the substitution of practical experi-
ence with Indiana law for ability to pass a test.
Or does it? Consider first the not uncommon case of
a person who practices law part time. The rule requires
App. 42
that the lawyer seeking to take advantage of it practice
“actively” in Indiana, but obviously that does not mean
full-time. Suppose the lawyer practices 500 hours a year,
300 of them in Indiana. He would be entitled to admis-
sion to the Indiana bar (conditionally, until he had ful-
filled the predominance requirement for five consecutive
years), even though a lawyer who practiced twice as
much in Indiana but more elsewhere would have to take
the bar exam. This is an irrational distinction and a
burden on the practice of law in the other states. It does
not merely create the kind of hard case that is inevitable
whenever lines must be drawn. It is rooted in the irra-
tionality of measuring competence in Indiana law by the
ratio of one’s Indiana practice to one’s out of state prac-
tice instead of by the amount of one’s Indiana practice.
How much or how little one does elsewhere is irrelevant
to one’s competence to practice law i: Indiana, save as
one’s out of state practice affects the size of one’s Indiana
practice. Confining the waiver of the bar exam to full-
time practitioners in Indiana would be a measure at least
rationally related to the state’s interest in protecting its
consumers of legal services. Goldfarb v. Supreme Court of
Virginia, 766 F.2d 859 (4th Cir. 1985). Indiana’s rule is not.
Consider next the case of a person who practices law
in Washington, D.C., and whose major client is Eli Lilly, a
large Indiana firm, which the lawyer represents exclu-
sively before the Food and Drug Administration. The
lawyer knows no Indiana law; he has never handled a
problem involving Indiana law, either for Eli Lilly or for
anyone else. But if more than 50 percent of his practice is
representing Lilly, he is entitled to be admitted to the
Indiana bar without taking the bar exam, because the rule
DR AP a re OE ole Pe 4
App. 43
defines the practice of law “in Indiana” to include repre-
senting Indiana clients anywhere. A similar example
would be a products-liability lawyer in Hawaii whose
predominant practice was defending products-liability
suits brought against Eli Lilly under the law of Hawaii
and who like my FDA lawyer had no knowledge of or
experience with the law of Indiana. Again these are not
just the inevitable hard cases. They are rooted in the
irrationality of defining the practice of Indiana law with
reference to the residence of clients rather than to the
nature of the legal work done for them.
It is not as if an alternative rule designed to allow the
substitution of practical experience for taking the bar
exam as a token of competence would generate equiva-
lent irrationalities; in that event Indiana’s rule, though
bad, might be as good as circumstances permitted. If the
rule simply required some minimum number of hours a
year practicing law in Indiana, with “practice in Indiana”
defined as practicing in the courts of Indiana (including
the federal courts of Indiana in diversity cases) and
before Indiana administrative agencies, or providing
advice on matters of Indiana law, it would not produce
the irrational results that the challenged rule is bound to
produce. It also would not (unless the minimum were set
very high) constitute a tax on having a large practice
outside Indiana, as the challenged rule does. The rule
discriminates against the practice of law outside Indiana
without contributing appreciably to the state’s legitimate
interest in having knowledgeable lawyers. The rule
flunks the laxest sort of balancing test.
I am mindful that if the rule were invalidated, as I
think it should be, Indiana might respond by making all
App. 44
lawyers who want to practice law in Indiana take the
Indiana bar exam. But that is speculation. The pressures
that led Indiana to adopt the present rule are at least as
likely to induce it to adopt a rational substitute.
The fact that I disagree with the panel’s decision is of
course not a sufficient basis for wanting to hear the case
argued en banc. But keeping the channels of interstate
commerce free from unreasonable obstructions (obstruc-
tions that include constraints and incentives concerning
where lawyers practice) is a particularly important
responsibility of federal judges and one we are especially
competent to discharge when the commerce in question is
the commerce in legal services. We are lawyers ourselves.
We understand this branch of commerce.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
ERNE rer eco MME (ORR COLE ROR MIE meas ? : — ' , : ——
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.