Opposition Brief — Scariano v. Justices of the Supreme Court of Indiana

= HIRED

ae

> 1995

No. 94-1783

CEERK.

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.

— SJ

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF IN OPPOSITION

+

Davip C. CAMPBELL

Counsel of Record

Kart L. MuLvANEey

SHARON L. GROEGER

BINGHAM SUMMERS WeE.isSH & SPILMAN

2700 Market Tower

10 West Market Street

Indianapolis, IN 46204-2982

(317) 635-8900

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 442-2831

QUESTION PRESENTED FOR REVIEW

Whether the United States Supreme Court should

issue a writ of certiorari where:

a. the Court of Appeals applied the correct equal

protection analysis to the challenged rule and its deter-

mination does not conflict with decisions of this Court or

other courts of appeals; and

b. the Court of Appeals applied the correct analysis

under the interstate commerce clause and its determina-

tion does not conflict with decisions of this Court or other

courts of appeals.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

FARCE CP AU TI Ee OR in bbc cktnbiesckeedessanan ili

COP OGAT ED WMO 456 64. 46.4 65s on 0s Hacnnee van eases 1

RELEVANT CONSTITUTIONAL PROVISIONS AND

ole ot. rE mm rr) Pee 1

SUAt moms CF Teme CA i ince sande dieneevnewas 2

SUMMARY OF ARGUMENT... ......2200ccesceeus: 4

PUGET 0 bin.kns cnncanccdeecesss inka +

I. REVIEW IS NOT WARRANTED OF THE COURT

OF APPEALS’ DETERMINATION THAT RULE 6

DOES NOT VIOLATE THE EQUAL PROTEC-

Fee CRAIG bine wcvsdusestiatacessduneeniees 4

Il. REVIEW IS NOT WARRANTED OF THE COURT

OF APPEALS’ DETERMINATION THAT RULE 6

DOES NOT IMPERMISSIBLY INTERFERE WITH

ENTERS ATE CONENEOBe cs ccc cccasvccccsaaes 7

ee Ak PTT ee eee re eee try 10

iil

TABLE OF AUTHORITIES

Cases

Baldwin v. Fish & Game Comm'n of Montana, 436

i add ia da outs Sa ve'x ce asase see

Brown v. Supreme Court of Virginia, 359 F. Supp. 549

(E.D. Va. 1973), aff'd mem., 414 U.S. 1034 (1973)

Brown-Forman Distillers v. New York State Liquor

Autnority, 476 U.S. 573 (1966)... ...........55--

City of New Orleans v. Dukes, 427 U.S. 297 (1976)

EES bo di CANG bh b ckee ed She neaessearse's

Comey © Gipson, 359 US. 42 (1957) .............

CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69

SS SEE Sr GE Se re ee

District of Columbia Court of Appeals v. Feldman, 460

cn cunuas

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

ee ee te Pe eer eee

Goldfarb v. Supreme Court of Virginia, 766 F.2d 859

(4th Cir. 1985), cert. denied, 474 U.S. 1086 (1986)...

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

kk ain't ae nnbibwnes

Leis v. Fiynt, 459 US. 435 (1979) ................

Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983)

Martin v. Walton, 368 U.S. 25 (1961).............

Middlesex County Ethics Comm. v. Garden State Bar

ge Se Be

Oklahoma Tax Comm'n v. Jefferson Lines, Inc., __

ES Se S|

Page

a ae

iV

TABLE OF AUTHORITIES — Continued

Page

Phelps v. Board of Education, 300 U.S. 319 (1937) ...... 6

Philadelphia v. New Jersey, 437 U.S. 617 (1978)......... 8

Pike v. Bruce Church, Inc., 397 U.S. 137 (1969)....... 7,9

Pontarelli Limousine, Inc., v. City of Chicago, 929

a See STUN UE ROE nia ere 6 c5 cee canter se esesess 6

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ....... 3

Scariano v. Justices of the Supreme Court of Indiana,

Re ee S70 ee Ac Oa ds eee naeen Covi ase. 1

Scariano v. Justices of the Supreme Court of Indiana,

Be Bo ge, Be a. Peer rer re reer er Tire 1

Scariano v. Justices of the Supreme Court of Indiana,

S52 F. Supp. 706 (6.0. Ind. 1994) ......-.-++:: oe oe

Schumacher v. Nix, 965 F.2d 1262 (3rd Cir. 1992),

cert. memied, IS D. GR. T25e CRI ae so cece sc ccencs 4,6

Sestric v. Clark, 765 F.2d 655, (7th Cir. 1985), cert.

Mented, 47% TLS. TORR CATS as osc nak wesecessaecsins 5

Shapiro v. Cooke, 552 F. Supp. 581 (N.D.N.Y. 1982),

ay @, Fae Fad GS GG Ci. BPRS). soon cds cc cecccens 8

Whitfield v. Illinois Board of Law Examiners, 504 F.2d

Se ee ae i nk Koo ides wane Heed Ko oh eeees 6

Williams v. Vermont, 472 U.S. 14 (1985)............... 6

Williamson v. Lee Optical of Oklahoma, 348 U.S. 483

CE co cn Ue keh bh ERE eRe rye OVATE ne vane Eu eRaR: 6

OPINIONS BELOW

The opinion of the Court of Appeals of the Seventh

Circuit, in which the dismissal of the complaint was

affirmed, is reported as Scariano v. Justices of the Supreme

Court of Indiana, 38 F.3d 920 (7th Cir. 1994). The Court of

Appeals’ decision denying the petition for rehearing with

suggestion for rehearing en banc is found at 47 F.3d 173

(7th Cir. 1995). The opinion of the District Court is

reported as Scariano v. Justices of the Supreme Court of

Indiana, 852 F. Supp. 708 (S.D. Ind. 1994).

¢

RELEVANT CONSTITUTIONAL PROVISIONS

AND REGULATIONS

The Petitioner’s statement of “Constitutional Provi-

sions and Regulations Involved” (Petition, pp. 2-5) is

correct and complete except to the extent that it has

omitted the interpretive notice regarding Rule 6 issued by

the State Board of Law Examiners. That notice states:

At its meeting on April 23, 1992, the State

Board of Law Examiners reviewed Admission

and Discipline Rule 6 and defined the following

terms:

(a) The term “in Indiana” means dealing with

Indiana law, representing Indiana clients,

or handling cases in Indiana courts, 1.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 location of his

office.

(b) When determining the extent of the indi-

vidual’s “practice of law” in Indiana for

purposes of meeting the “predominantly”

requirement, the lawyer should measure

his or her practice in terms of overall time

spent, rather than in terms of income gen-

erated. This determination should be veri-

fiable by time sheets, case records or other

evidence.

(c) The term “predominantly” means that the

individual’s practice in Indiana must

exceed, or be equal to, his or her practice in

any other jurisdiction.

All attorneys seeking renewal of their con-

ditional admission will be notified by November

15 of the reporting year of the expiration of their

conditional license and the requirement to sub-

mit the application for renewal. All applications

for renewal of conditional admission and fees

must be received by January 1 of the next year

or the conditional license expires.

(Appendix to Appellant's Brief, p. A-33).

e

STATEMENT OF THE CASE

Anthony G. Scariano brought this action against the

Defendants, alleging that Rule 6 of the Indiana Rules for

Admission to the Bar and the Discipline of Attorneys

(hereinafter, “Rule 6”) violates the United States Consti-

tution, both facially and as applied to him. The District

Court dismissed Scariano’s claims as applied to him for

lack of subject matter jurisdiction, pursuant to District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),

and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). 852 F.

Supp. at 713. The District Court dismissed the facial

constitutional claims with prejudice for failure to state a

claim upon which relief may be granted. The Court of

Appeals for the Seventh Circuit affirmed the dismissal.

Rule 6 provides that an attorney who is licensed to

practice law in another state, who has actively practiced

law for five (5) of the seven (7) years preceding applica-

tion, and who satisfies certain other requirements may be

conditionally admitted to the Indiana bar without passing

the bar examination if he or she practices “predominantly

in Indiana.” Scariano maintains that Rule 6 violates the

equal protection clause of the fourteenth amendment and

the commerce clause found at article I, section 8 of the

United States Constitution. He no longer claims that Rule

6 impermissibly restricts his right to travel, as alleged in

his complaint.

Scariano’s Petition for Writ of Certiorari misstates the

evidence in that it states “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” examination. (Petition, p. 12). In the Peti-

tioner’s example, both attorneys would be permitted

admission without taking the bar examination pursuant

to Rule 6, because “predominantly” is defined as: “must

exceed or be equal to.” (Interpretive Notice of State Board

of Law Examiners, April 23, 1992).

¢

SUMMARY OF ARGUMENT

The decision of the Court of Appeals is correct and

does not conflict with decisions of other United States

courts of appeal, nor has it resolved an important ques-

tion of federal law in a way that conflicts with decisions

of the Supreme Court of the United States. Rule 6 does

not violate the equal protection clause or the interstate

commerce clause of the United States Constitution, and

the Court of Appeals applied the correct analysis with

respect to each of the constitutional claims alleged.

+

ARGUMENT

I. REVIEW IS NOT WARRANTED OF THE COURT

OF APPEALS’ DETERMINATION THAT RULE 6

DOES NOT VIOLATE THE EQUAL PROTECTION

CLAUSE

The Court of Appeals decision that Rule 6 does not

violate the equal protection clause does not warrant

review because that determination is correct and does not

conflict with applicable decisions of other courts of

appeals or of this Court.

The Court of Appeals correctly determined that Rule

6 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 (3rd Cir.

1992), cert. denied, 113 S. Ct. 1252 (1993) (quoting City of

New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per cur-

iam)) (footnote omitted). Indeed, Scariano has conceded

both that the “rational relationship” standard is the

~

proper analysis to be applied in this case, and that the

Defendants have a legitimate state interest in ensuring

the competence of attorneys who practice law in Indiana.

(Petition, p. 11). Moreover, states have traditionally been

permitted to exercise extensive control over the admis-

sion and conduct of attorneys. Middlesex County Ethics

Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 434 (1982).

States may clearly draw distinctions among individ-

uals such as those drawn by Rule 6. Indeed, states would

be unable to operate effectively without the freedom to

do so. It is only when these distinctions amount to

“invidious discrimination” that they are found to offend

the Constitution. Brown v. Supreme Court of Virginia, 359 F.

Supp. 549, 554 (E.D. Va. 1973), aff'd mem., 414 U.S. 1034

(1973), (quoting Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356 (1973)). The classifications created by Rule 6

do not result in any invidious discrimination.

Scariano argues that Rule 6 is not well-tailored to

ensure the competence of attorneys practicing in Indiana.

Such a challenge must fail under the rational basis stan-

dard of review. Baldwin v. Fish & Game Comm'n of Mon-

tana, 436 U.S. 371, 390-91 (1978). The equal protection

clause does not require states to draw distinctions with

“mathematical exactitude.” Dukes, 427 U.S. at 303. The

predominant practice requirement addresses the State’s

legitimate concern that attorneys who are willing to prac-

tice in Indiana only on an “intermittent basis” may lack

sufficient incentive to master Indiana law. Sestric v. Clark,

765 F.2d 655, 661 (7th Cir. 1985), cert. denied, 474 U.S. 1086

(1986).

Scariano asks this Court to define the relevant class

so narrowly as effectively to apply a “least restrictive

means” analysis. See Lowrie v. Goldenhersh, 716 F.2d 401,

409 (7th Cir. 1983) (citing Williamson v. Lee Optical of

Oklahoma, 348 U.S. 483, 487 (1955)). That analysis has no

place in a rational relationship review, however. Id.; see

Schumacher, 965 F.2d at 1272-73.

Scariano cites Williams v. Vermont, 472 U.S. 14 (1985),

for his argument that Rule 6 “bootstraps” or creates an

artificial classification. (Petition, pp. 17-18). Both the

argument and the reliance upon Williams are misplaced.

Williams must be distinguished from this case on the basis

that the criterion at issue there was residence at the time of

purchase. Id. at 23. Also see Pontarelli Limousine, Inc., v.

City of Chicago, 929 F.2d 339, 341-42 (7th Cir. 1991). Unlike

the “arbitrary” distinction scrutinized in Williams, 472

U.S. at 23, Rule 6 “forces familiarity with Indiana

law .. . [and] fosters the State’s legitimate interest in

regulating and maintaining the quality of those persons

admitted to practice law .. . ” Scariano, 852 F. Supp. at

715.

Scariano’s objection to Rule 6 is essentially a claim that

Rule 6 “result[s] in ‘incidental individual inequality.’ ” See

Martin v. Walton, 368 U.S. 25, 26 (1961) (quoting Phelps v.

Board of Education, 300 U.S. 319, 324 (1937)). A rule or regula-

tion which may result in an “incidental individual inequal-

ity” does not violate the equal protection clause, however. Id.

The possibility that one “even exceptionally qualified indi-

vidual” might be excluded by the effect of Rule 6 does not

lead to a conclusion that the rule offends the constitution.

Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474, 476

(7th Cir. 1974).

The Court of Appeals correctly applied the rational

relationship standard of review to Rule 6 and reached the

correct conclusion. There is no set of facts upon which

Scariano can prove that Rule 6 offends the equal protec-

tion clause. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Review of the Court of Appeals’ decision is not war-

ranted, therefore.

Il. REVIEW IS NOT WARRANTED OF THE COURT

OF APPEALS’ DETERMINATION THAT RULE 6

DOES NOT IMPERMISSIBLY INTERFERE WITH

INTERSTATE COMMERCE

The essential inquiry under the interstate commerce

clause is whether the rule or regulation in question dis-

criminates against out-of-state interests relative to in-

state interests. See CTS Corp. v. Dynamics Corp. of America,

481 U.S. 69 (1987). Scariano’s interstate commerce claim

has repeatedly ignored this crucial question, however.

Rule 6 confers no less of a benefit upon out-of-state

attorneys than it does on lawyers in Indiana who are

otherwise similarly situated. This fact alone is fatal to

Scariano’s interstate commerce challenge; Rule 6’s impact

on interstate commerce is “even-handed” and, therefore,

permissible. See Brown-Forman Distillers v. New York State

Liquor Authority, 476 U.S. 573, 579 (1986).

The Court of Appeals was correct to apply the anal-

ysis of Pike v. Bruce Church, Inc., 397 U.S. 137 (1969).

There, this Court stated that a state rule will be upheld

against a commerce clause challenge “unless the burden

on such commerce is clearly excessive in relation to the

putative local benefits.” Id. at 142. This Court has clearly

stated that the possibility that a greater percentage of

individuals adversely affected by a state classification

may reside outside the regulating state does not indicate

that the classification impermissibly interferes with inter-

state commerce. CTS Corp., 481 U.S. at 88; see Exxon Corp.

v. Governor of Maryland, 437 U.S. 117, 119, 123 (1978).

Rule 6 is fundamentally different from the types of

commercial regulations created by states for the purpose

of “economic protectionism.” See, e.g., Brown-Forman Dis-

tillers, 476 U.S. at 580 (quoting Philadelphia v. New Jersey,

437 U.S. 617, 624 (1978)); Oklahoma Tax Comm'n v. Jefferson

Lines, Inc., ___ U.S. __, 115 S. Ct. 1331, 1335, 1344 (1995).

Unlike many other types of “commerce,” there is only a

finite amount of legal services that can be performed for

Indiana clients. Rule 6 permits—even encourages—a por-

tion of that work to be performed by lawyers outside of

Indiana, even though Indiana will not benefit from the

tax revenues generated by an out-of-state practitioner.

Rule 6 offers the out-of-state attorney an option for

admission to the bar in addition to passing the bar exam-

ination. It has been held that the bar examination alterna-

tive should be taken into account in any commerce clause

analysis of a bar admission rule such as Rule 6. Goldfarb v.

Supreme Court of Virginia, 766 F.2d 859, 864 (4th Cir. 1985),

cert. denied, 474 U.S. 1086 (1986); Shapiro v. Cooke, 552 F.

Supp. 581 (N.D.N.Y. 1982), aff'd, 702 F.2d 46 (2nd Cir.

1983). In Goldfarb, the court upheld a bar admission rule

containing a “full-time” practice requirement. 766 F.2d at

864. Rule 6 clearly enhances, rather than impedes, inter-

state commerce. Shapiro, 552 F. Supp. at 588.

Finally, the deference displayed by this Court to state

rules governing admission to the bar is no less well-

placed in the interstate commerce clause context than in

any other. See Leis v. Flynt, 439 U.S. 438, 442 (1979) (due

process clause challenge); Goldfarb, 766 F.2d at 863 (com-

merce clause challenge).

The Court of Appeals for the Seventh Circuit cor-

rectly applied the Pike v. Bruce Church test to Rule 6 and

correctly concluded that it does not impermissibly inter-

fere with interstate commerce. This is not a case of suffi-

cient constitutional dimensions to warrant review of the

Court of Appeals’ decision.

+

10

CONCLUSION

Review of this case is not warranted. The Court of

Appeals correctly applied the appropriate tests under

both the equal protection and interstate commerce

clauses. The decision of the Court of Appeals does not

conflict with the opinions of other courts of appeal or

with decisions of this Court. Rule 6 is constitutionally

permitted and the decision of the Court of Appeals for

the Seventh Circuit should remain undisturbed.

Respectfully submitted,

Davip C. CAMPBELL, #3087-49

Counsel of Record

Kart L. Mutvaney, #9255-49

SHARON L. GROEGER, #8261-49

Attorneys for Respondents

BINGHAM SUMMERS WELSH & SPILMAN

2700 Market Tower

10 West Market Street

Indianapolis, IN 46204-2982

(317) 635-8900