Petition for Writ of Certiorari — Tolchin v. Supreme Court of New Jersey
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DO No. 97% +209 WL 311997
OFFICé OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1997
od
ROBERT J. TOLCHIN, individually and on behalf
of all others similarly situated,
Petitioner,
—_V.—
THE SUPREME COURT OF THE STATE OF NEW JERSEY, ROBERT WILENTZ
(intended to be the Chief Judge of the Supreme Court of New Jersey)
STEPHEN W. TOWNSEND (intended to be the Clerk of the Supreme
Court of New Jersey), THE NEW JERSEY STATE BOARD OF BAR
EXAMINERS, SAMUEL J. UBERMAN (intended to be the Assistant
Secretary of the New Jersey Supreme Court who plaintiff believes to
direct the State Board of Bar Examiners) THE NEW JERSEY INSTITUTE
FOR CONTINUING LEGAL EDUCATION, and JOSEPH J. HOGYA (intended
to be the Institute for Continuing Legal Education Skills Training
Course Director),
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ROBERT J. TOLCHIN, ESQ. DAVID JAROSLAWICZ, ESQ.
Petitioner Pro-se (Counsel of Record)
150 William Street, 19th Floor JAROSLAWICZ & JAROS
New York, New York 10038 150 William Street, 19th Floor
(212) 227-2181 New York, New York 10038
(212) 227-2780
ESTI PRESENTED
The judgment below presents the following issues
for review:
1. Does the United States Constitution permit a
state to require lawyers duly licensed to practice law in the
state to maintain a full-fledged office where clients are met,
files are kept, the telephone is answered, mail is received
and the attorney or a responsible person acting on the
attorney's behalf can be reached in person and by
telephone during normal business hours to answer
questions posed by the courts, clients or adversaries and
to ensure that competent advice from the attorney can be
obtained within a reasonable period of time?
2. Does such an in-state office requirement offend
the dormant aspect of the Commerce Clause?
3. Does the United States Constitution permit a
state to require lawyers duly licensed to practice law in the
state and newly admitted to the state’s bar to attend a two
year long sequence of classes which are only offered
within the borders of the state and which are usually
presented on videotape which could just as well be
presented outside the state or watched by lawyers on
their own at home or in their offices?
PARTIES TO THE PR EDIN
There are no parties to this case other than those
appearing in the caption.
The defendant Robert W. Wilentz was at the time
this action was commenced the Chief Judge of the
Supreme Court of New Jersey. Since the commencement
of this action, Judge Wilentz became ill and resigned from
the bench. Subsequently, Judge Wilentz unfortunately
passed away.’
After Judge Wilentz resigned from the bench,
Deborah Poritz, who was the New Jersey Attorney
General and who represented the state defendants in this
action, was appointed Chief Judge of the Supreme Court of
New Jersey.
' The New York Times reported that Judge Wilentz died in
his apartment in Manhattan. This is rather ironic, considering the
position taken by the defendants in this case that in order to practice
law in New Jersey a lawyer must have an office in New Jersey. If the
Chief Judge could live in Manhattan and preside over a court in New
Jersey, why should lawyers not be permitted to have their offices in
Manhattan and practice in New Jersey?
et
TABLE OF CONTENTS
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eT a suvsnscsos ovscvesesislalidasssiconnoen. iv
Petition for a Writ of Certiorarin...........cccccccccccececceseseseecee. ]
acs cassspncshcadbuavaasicncas 2
Statement of Jurisdiction........0.0.0cccecccccccecceccecceceeee. 2
SIE HE ON sss cnsnnsssecvavessvnscveisasoveseoacese 17
Reasons for Granting the Writ...........0.cccccccceccceeeeeeee: 29
ern eaclnaiecdevwcasessiacleceiscuuevavsiveserces 39
Appendix
Decision of the Third Circuiit.......000.0ccccccccccccesceseeceee, la
Order of the District Court......................ccccccsccssssoees. 4la
United States Constitution, art. I, § 8, clause 3... 79a
NJ. Cr. R. 1:21-1 (1997) (current version) ........ 80a
N.J. Ct. R. 1:21-1 (1995) (before June 28, 1996
amendment effective September 1, 1996)...... 86a
I A I ao ca sss wisecesessnvniesucecsenrsedacversssaveonsesaneses 92a
TABLE OF AUTHORITIES
ase
Barnard v. Thorstenn, 489 U.S. 546, 555 (1989) ............... 21
Brown-Forman Distillers Corp. v. New York Liquor
Authority, 476 U.S. 573 (1986) ......... cece 33-34
City of Cleburne v. Cleburne Living Center, 473 U.S.
sR RCE RARE AMICI anY eared 38
City of Philadelphia v. New Jersey, 437 U.S. 617, 614
RII 50h cscs ds circu taka ons aeelasanin mneasaledipaganasiacens 28
Frazier v. Heebe, 482 U.S. 641, 649 (1987) 21, 23, 31, 34-36
Institutional Sys., Inc. v. Computer Curriculum Corp.,
SS FB S15, C24 (GG Cie, VOID) on siccvceccssiiceeenccaseness 33
Matter of Kasson, 141 NJ. 83, 660 A.2d 1187 (1995) ....... 36
Pike v. Bruce Church, 397 U.S. 137 (1970) ..........ee. 33-34
In re Sackman, 90 NJ. 521, 448 A.D.2d 1014 (1982) ........ 31
Supreme Court of New Hampshire v. Piper, 470 U.S.
FE, BD i rsicinigpbtnommenctaounsensen 22, 30, 32
Supreme Court of Virginia v. Friedman, 487 U.S. 59,
2. WA eliN Men edcteen ORR NDie a IOP oP Sanne DRIED SPER 31
Tolchin v. The Supreme Court of the State of New
Jersey, 111 F.3d 1099 (3d Cir. 1997) ...00.0...... passim
Tolchin v. The Supreme Court of the State of New
Jersey 1995 U.S. Dist. LEXIS 21518 (D.N J.
1996) (Cavanaugh, U.S.M)J.) ....... eee passim
Constitutional Provisions, Statutes and Rules
US, Comet. at 1, 0G, Ce 3s. passim
iv
——
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OG Shi Oe SN oscil cessereicanunasaenanemeeanerscla aun 17
New Jersey Constitution, art. 6, § 2,93. ...0..0ccccecceeee. 17
Fe. Gas Oe Soke LEE? occtatedroreeen eee passim
Pe Be Sk Ss So A Ds ccicomstitcecdescesucane eames passim
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Other Authority
THE FEDERALIST No. 22 (Alexander Hamilton).............. 32-33
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
ROBERT J. TOLCHIN, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Petitioner,
-against-
SUPREME CourRT OF NEw JERSEY, ROBERT N. WILENTZ
(INTENDED TO BE THE CHIEF JUDGE OF THE SUPREME COURT OF
NEW JERSEY), STEPHEN W. TOWNSEND (INTENDED TO BE THE
CLERK OF THE SUPREME COuRT OF NEw JERSEY), NEW JERSEY
STATE BOARD OF BAR EXAMINERS, SAMUEL J. UBERMAN
(INTENDED TO BE THE ASSISTANT SECRETARY OF THE NEW
JERSEY SUPREME COURT WHO PLAINTIFF BELIEVES TO DIRECT
THE STATE BOARD OF LAW EXAMINERS), NEW JERSEY
INSTITUTE FOR CONTINUING LEGAL EDUCATION AND JOSEPH J.
HoOGyYA (INTENDED TO BE THE INSTITUTE FOR CONTINUING
LEGAL EDUCATION SKILLS TRAINING CourRSE DIRECTOR),
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
This petition seeks review of the judgment of the
United States Court of Appeals for the Third Circuit,
Tolchin v. The Supreme Court of the State of New Jersey,
111 F.3d 1099; 1997 U.S. App. LEXIS 9831 (3d Cir. 1997)
(la), which affirmed the judgment of the United States
District Court for the District of New Jersey dated
December 14, 1995 (41a), which in turn adopted the
report and recommendation of the Magistrate Judge,
Tolchin v. The Supreme Court of the State of New Jersey
1995 U.S. Dist. LEXIS 21518 (D.NJ. 1996) (Cavanaugh,
U.S.MJ.) (43a).
A T OF ICTION
In seeking review of the judgment of the United
States Court of Appeals for the Third Circuit, petitioner
invokes the certiorari jurisdiction conferred on this Court
by 28 U.S.C. § 1254(1).
The judgment which the plaintiff seeks to have
reviewed was entered by the Clerk of the United States
Court of Appeals for the Third Circuit on May 2, 1997, the
same day as the opinion of that court was filed. This
* Parenthetical page references denominated with an ‘a’ refer
to pages of the appendix at the back of this petition.
petition is timely since it is being brought within 90 days
of that date. ~
There have been no applications for rehearing.
STATEMENT OF THE CASE
ee
This is a civil rights case arising under 42 U.S.C.
8§ 1983 and 1985. Jurisdiction in the court of first instance
was based on federai question jurisdiction, 28 U.S.C.
8 1331, as this case arises under a federal statute and the
United States Constitution.
Intr ion
The State of New Jersey has vested the authority to
regulate lawyers and the practice of law in the Supreme
Court of the State of New Jersey (“New Jersey Supreme
Court”). New Jersey Constitution, art. 6, § 2, 4 3.
Exercising this authority, the New Jersey Supreme Court
has adopted rules regulating the practice of law commonly
known as the New Jersey Rules of Court.
Two of these rules are at issue in this case. The
first, N.J. Cr. R. 1:21-1 (1997), more commonly known as
the bona fide office rule, requires a lawyer holding a license
to practice law in the State of New Jersey to maintain an
office in the State of New Jersey, without regard to the
needs of the lawyer's practice.
Few would be surprised to learn that a lawyer who
wishes to practice law in the State of New Jersey must be
graduated from an accredited law school, pass the New
Jersey bar exam, pass the scrutiny of the character and
fitness screening process and take an oath to support the
laws of the State of New Jersey and the Constitution of the
United States of America. Likewise, few would be
surprised to learn that a lawyer who does not reside in
New Jersey must designate the Clerk of the Supreme
Court of the State of New Jersey (“New Jersey Supreme
Court”) as his or her agent for the service of process.
What many do find astonishing in this era of
information technology, rapid communication, super-
highways and jet air travel is that without regard to the
nature of a particular lawyer's practice or the lawyer’s
geographic location, New Jersey requires duly licensed
lawyers who wish to actually practice law in the State of
New Jersey to maintain a “bona fide office” someplace
within the State of New Jersey, NJ. Cr. R. 1:21-1 (1997),
and to complete a series of courses which are only offered
within the geographic borders of the State of New Jersey,
NJ. Cr. R. 1:26 (1997). A lawyer who fails to comply
with these requirements is given a status of “ineligible to
practice” and is subject to disciplinary action if he or she
should practice law within New Jersey.
The Bona Fi ice Rul
The office requirement cannot be satisfied by
arranging for a maildrop or an answering service. The rule
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requires a lawyer to maintain an actual office within the
state where the lawyer can be reached and is actually
present on a regular basis. A “bona fide office” is defined in
the rule as:'
more than a maildrop, asummer home that is
unattended during a substantial portion of the
year, an answering service unrelated to a place
where business is conducted or a place where
an on-site agent of the attorney receives and
transmits messages only. For the purpose of
this section, a bona fide office is a place where
clients are met, files are kept, the telephone is
answered, mail is received and the attorney or a
responsible person acting on the attorney's
behalf can be reached in person and by
telephone during normal business hours to
answer questions posed by the courts, clients
or adversaries and to ensure that competent
advice from the attorney can be obtained within
a reasonable period of time.
NJ. Cr. R. 1:21-1 (1997).
This bona fide office requirement places an onerous
burden on lawyers whose offices are located outside New
Jersey and who wish to devote part of their time to
’ During the pendency of this action, the bona fide office
rule was amended so that it is now even more stringent then it was
at the time this action was commenced. The amended version was
enacted on June 28, 1996 and became effective September 1, 1996,
just ten days before this matter was argued in the Third Circuit. The
Third Circuit was made aware of the amendment and its decision
addressed the current version, rather than the older version which is
no longer in effect. Both versions are reproduced for this Court in the
“Statutes Involved” section of this petition.
practicing law in New Jersey. For example, a lawyer (such
as the plaintiff in our case) with an office in Manhattan
who holds a New Jersey license to practice law may wish
to represent a long-standing New York client in a matter
that requires him to practice law in New Jersey, such as a
lawsuit pending in a New Jersey court, an arbitration
venued in New Jersey, a federal administrative proceeding
being held in New Jersey, a corporate merger closing in
New Jersey or negotiation of a labor dispute with a labor
union headquartered in New Jersey. Despite the fact that
the Manhattan lawyer has relatively easy access to the
entire northern part of the State of New Jersey and can in
fact arrive at the Federal District Court in Newark within
thirty minutes on the PATH train,’ that lawyer is
prohibited from undertaking such representation because
he does not have an office in New Jersey. This office
requirement is imposed notwithstanding the fact that the
lawyer is every bit as able to represent his client from his
New York office and his New York office is most
convenient for his client. The result is that if this lawyer
wishes to represent his client in New Jersey, he is
compelled to hire a local New Jersey lawyer who need not
actually do anything other than lend his name as counsel
? The PATH train is a rail link under the Hudson River
operated by the Port Authority of New York and New Jersey, a quasi-
governmental authority jointly owned by the states of New York and
New Jersey in recognition of the fact that New York and New Jersey
comprise one economic market within which commerce must be
facilitated rather than hindered as is the effect of the “bona fide
office” requirement.
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of record and his office address to satisfy the bona fide
office rule.
This scenario may be both satisfactory and
immensely profitable to lawyers- with offices in New
Jersey who are able to parlay their captive New Jersey
market into a lucrative source of fees from the clients of
out-of-state lawyers who have legal matters in New
Jersey. However, this bona fide office rule improperly
encroaches upon the Constitutional right of lawyers
licensed to practice in New Jersey but who have offices
outside New Jersey to conduct their business in New
Jersey, and particularly offends the Constitution’s
Commerce Clause, U.S. Const., art I, § 8, clause 3.
This litigation pressed the defendants to identify
what purpose the bona fide office requirement serves and
to make a showing that some legitimate state interest
justifies the infringement of the right of lawyers with out-
of-state offices to do business in New Jersey. The
defendants took the position that the bona fide office rule is
allegedly necessary in order to assure “competence,
accountability and accessibility of attorneys for the benefit
of clients, courts, counsel and parties.” Tolchin v. Supreme
Court of New Jersey, 111 F.3d 1099, 1109 (3d Cir. 1997)
(21a).
Relying on this Couri’s decisions in Frazier v.
Heebe, 482 U.S. 641, 649 (1987) (“the mere fact that an
attorney has an office in [a jurisdiction] surely does not
warrant the assumption that he or she is more competent
than an out-of-state member of the state bar.”), Barnard v.
Thorstenn, 489 U.S. 546, 555 (1989) (“We can assume
that a lawyer who anticipates sufficient practice in[a
jurisdiction] to justify taking the bar examination and
paying the annual dues . . . will inform himself of the laws
of the [jurisdiction].”) and Supreme Court of New
Hampshire v. Piper, 470 U.S. 274, 285 (1985) (Court will
not assume that “a nonresident lawyer — any more than
a resident — would disserve his clients by failing to
familiarize himself with the [local law].”), the Third
Circuit rejected the defendants’ arguments that the bona
fide office requirement makes lawyers more competent.
Tolchin, 111 F.3d at 1108-09, (20a).
The Third Circuit also rejected the defendants’
argument that the bona fide office requirement increased
attorney accountability, since New Jersey already requires
all non-resident lawyers to designate the Clerk of the New
Jersey Supreme Court as agent for service of process.
Tolchin, 111 F.3d at 1109, (20a-2la) (citing NJ. Cr. R.
1:21-1(a)).
The Third Circuit nevertheless upheld the bona
fide office requirement for reasons hinging entirely on the
notion that requiring a lawyer to have an office in New
Jersey somehow “has a rational relationship to the benefit
of attorney accessibility for clients, courts, counsel and
parties.” Tolchin, 111 F.3d at 1009 (21a). The Court did
not explain why requiring a lawyer licensed to practice in
New Jersey but whose office is in Manhattan or
Philadelphia to establish an office in New Jersey would
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necessarily make the lawyer any more accessible to
clients, courts, counsel or parties.
The obvious fallacy pervading the Third Circuit's
reasoning is that requiring a lawyer to ensconce herself in
an office somewhere in New Jersey does not necessarily
make that lawyer more accessible than many lawyers
with out-of-state offices. For example, a lawyer could
satisfy the bona fide office requirement by having an office
in Atlantic City, New Jersey, approximately two hours
south of New York City, but that lawyer would be far less
accessible to a court in a northern New Jersey city such as
Newark, Jersey City or Hackensack than a lawyer with an
office in Manhattan, who would be scarcely half an hour
away. Similarly, a lawyer with offices in Philadelphia
would be far more accessible to courts in southern New
Jersey than a lawyer with an office satisfying the rule in
northern New Jersey. If the rule required lawyers to have
an office located within a specified number of miles from
any courthouse where they wished to practice law, one
could see how such a requirement would assure attorney
accessibility. However, the rule followed in New Jersey
does not bear a rational relationship to the ends of
attorney accessibility. See, Frazier v. Heebe, 482 U.S. 641
2613 (1987) (holding that an in-state office requirement is
“jrrational”).
It is indisputable that a New Jersey court wishing
to communicate with a lawyer located out-of-state need
only send a letter through the mail, send a fax or call on
the telephone. The mails are no less reliable when they
cross state lines, faxes work just as well and inter-state
telephone charges are no longer prohibitive as they were a
generation or two ago.”
The Third Circuit also failed to consider that the
vast majority of lawyers, other than trial lawyers, are not
litigators and thus rarely, if ever, need to be accessible to a
court in the first place. Lawyers who draft wills, trusts or
contracts, negotiate real estate transactions or corporate
mergers and acquisitions, practice corporate, securities,
labor, or customs law, engage in tax planning or specialize
in federal appellate advocacy almost never have matters
that require them to be accessible to a New Jersey court.
Similarly, specialized lawyers who engage in practice
before federal administrative forums such as Veterans’
Administration, Social Security or Immigration and
Naturalization Service hearings have little reason to be
required to be accessible to New Jersey courts. Yet all
these lawyers are required by the bona fide office rule to
maintain an office in New Jersey or be precluded from
engaging in such practice of law in New Jersey.
In contrast, Delaware’s parallel to New Jersey’s
bona fide office rule permits licensed lawyers with offices
out-of-state to practice law within the State of Delaware,
with the narrow caveat that all papers filed with a
* This is particularly so between New York and New Jersey,
where the same telephone company, NYNEX, serves the New York
City metropolitan area, including the northern portion of New Jersey,
in recognition of the fact that the northern half of New Jersey forms
part of the same natural market as New York City.
10
Delaware court must be signed by an active member of
the Delaware Bar who has an in-state address where
papers can be served, i.e. not a post office box. DEL Sup.
Cr. R. 12(a)(i).
Requiring a lawyer to be present at an office in New
Jersey also fails to enhance the lawyer's accessibility to
her clients, particularly if her clients are also out-of-state.
A lawyer with a license to practice law in New Jersey who
has an office in Brooklyn, New York is obviously more
accessible to her Brooklyn clients, who would find her
most inaccessible if her office were located someplace in
New Jersey. Similarly, requiring a lawyer who is in-house
counsel for a corporation whose law office is located
within the headquarters of the corporation in Manhattan
to also maintain an office in New Jersey in order to
represent that corporation in a proceeding in New Jersey
does nothing to make that lawyer more accessible to her
corporate client and is patently absurd.
This rule should also not be considered in a
vacuum. The most recent version of this rule was
promulgated in 1996, when fax machines, telephones,
high-speed railroads and highways, conference alls,
speakerphones, e-mail and cellular telephones had already
been pervasive for many years. Even if the idea of
requiring an office might have served to assure attorney
accessibility in a bygone and slower era, the rule has
become so unnecessary in today’s world that it cannot be
said to bear even a rational relationship to the ends of
assuring attorney accessibility.
11
The plaintiff submits that the real motivation
behind the bona fide office requirement is plain and simple
economic protectionism: New Jersey’s Bar establishment
enacted these rules to protect local New Jersey lawyers
and to promote full employment among local members of
the New Jersey Bar of New Jersey. The New Jersey Bar is
obviously concerned that the large firms in Manhattan and
Philadelphia will simply hire lawyers who took the New
Jersey bar exam and who are licensed to practice in New
Jersey, rather than hire local New Jersey lawyers to serve
as counsel of record. Even the Third Circuit recognized
that “it may be true, as Tolchin argues, that the bona fide
office requirement may include an element of economic
protectionism,” Tolchin, 111 F.3d at 1116 (39a). At the
very least this question raises a question of fact that
should have been left for the jury and should not have
been decided by the court below on a summary judgment
motion.
The Man nce R
Besides imposing an oppressive in-state office
requirement on duly licensed lawyers wishing to practice
law in New Jersey, the defendants also impose a
requirement that lawyers newly admitted to the New
Jersey bar complete a two year series of continuing legal
education classes called “Skills and Methods” that must be
attended at locations within the state of New Jersey. NJ.
Ct. R. 1:26 (1997). Failure to complete these courses
12
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makes a lawyer ineligible to practice in New Jersey until
the courses are completed. Id.
Skills and Methods classes are only offered within
the State of New Jersey, frequently at remote points
within the state. Only a handful of the lectures are
presented with a live lecturer, and those few live lectures
are straight lectures with no opportunity for questioning
the lecturer. The vast majority of the classes are presented
on video tape, and most participants complete the entire
series of classes without ever seeing a live lecturer. The
only evaluation of a student’s performance in the courses
is done on the basis of mail-in homework assignments
that can clearly be done just as easily within or without
the borders of the State of New Jersey.
There is a strict requirement that all participants in
the Skills and Methods program attend the lectures. This
requirement is called the mandatory attendance rule.
The defendants proffered absolutely no evidence
showing that any state interest is served by requiring
newly admitted lawyers to make weekly trips from
wherever they live to a classroom in New Jersey to watch
videotaped lectures. The same result could be achieved by
simply selling or renting the videotapes to out-of-state
lawyers who can then watch them at home, complete the
homework and get the same educational benefit.
While the defendants argue that the mandatory
attendance rule does not impose a great burden on out-of-
state members of the New Jersey Bar, one need only
consider the plight of a young lawyer who passed the
13
New Jersey bar exam immediately after law school, has
become admitted to the New Jersey bar and who intends
to practice law in New Jersey after cempleting a two year
clerkship in the United States District Court for the
Eastern District of Louisiana or the Northern District of
New York. Because such a young lawyer cannot,
practically speaking, attend the lectures which are offered
only in New Jersey, he is destined to become ineligible to
practice law in New Jersey and will foreclosed from
practicing there. The same would apply to a lawyer with
many years experience from another state who wished to
move to New Jersey.
The result of the mandatory attendance
requirement is that the New Jersey market for legal
services is reserved for local New Jersey lawyers. This is
exactly what the Commerce Clause was intended to
prevent. See City of Philadelphia v. New Jersey, 437 U.S.
617, 614 (1978) (“[R]egulations that operate as economic
protectionism and serve to protect in-state economic
interests at the expense of out-of-state competitors are per
se invalid.”)
The rule that imposes the Skills and Methods
requirement also directs the defendant New Jersey State
Board of Law Examiners to promulgate rules governing
this course, including a curriculum. The defendants admit
that no such rules were ever promulgated. The course is
administered by the defendant Institute for Continuing
Legal Education (“ICLE”) according to an ad _ hoc
14
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arrangement with the defendant New Jersey Supreme
Court.
Obviously, if there were a defined curriculum for
the course and a written list of requirements, it would be a
simple matter for law schools and bar associations around
the country to offer courses satisfying the Skills and
Methods requirement. Indeed, the record contains the
affidavit of a past president of the New York State Trial
Lawyers Association who states that if there were such a
curriculum available, his organization would offer a New
Jersey Skills and Methods course in New York.
However, because there is no defined curriculum
or rules governing the course, the only organization in the
world which offers this course is the defendant ICLE.
REASONS FOR GRANTING THE WRIT
This case raises for this Courts review the
constitutionality of two rules adopted by a state court in
its regulatory capacity that substantially hinder the ability
of lawyers to engage in interstate commerce in the practice
of law. This Court has never reviewed these rules nor any
similar rules.
In deciding to uphold these burdensome and
restrictive New Jersey regulations, the Third Circuit
decided an important question of federal law that has not
been, but should be, settled by this Court.
15
Twelve years ago, this Court adjudged as
unconstitutional a New Hampshire regulation prohibiting
duly licensed lawyers from practicing law. in New
Hampshire if they did not reside in New Hampshire.
Supreme Court of New Hampshire v. Piper, 470 U.S. 274
(1985). In his opinion concurring in result, Justice White
wrote “I would postpone to another day such questions
as whether the State may constitutionally condition
membership in the New Hampshire Bar upon
maintaining an office for the practice of law in the State of
New Hampshire.” Id., 470 U.S. at 289 (White, J.)
(concurring in result).
The petitioner respectfully submits that the future
day referred to by Justice White for determining the
validity of in-state office requirements has now come. The
arrival of this day has been heralded by the defendants’
having increased the stringency of their enforcement of
the bona fide office rule and their having actually re-
written the bona fide office rule to make it even more
difficult for New Jersey licensed lawyers practicing in
another state to comply with since the commencement of
this action. There are thousands of lawyers licensed to
practice law in New Jersey but whose primary offices are
located outside New Jersey and who are therefore
impacted by this rule and the defendants’ increased
enforcement of this rule. This rule is now quite ripe for
review by this Court.
It should be noted that the Piper case did not
involve a in-state office rule. The rule being challenged in
16
Piper was purely a residency requirement. Nevertheless,
Justice White’s comment was prescient since he
obviously foresaw that once residency requirements for
practicing law were held to be unconstitutional, states
might adopt in-state office requirements as a fallback line
of protectionism. This is exactly what New Jersey did
after the New Jersey Supreme Court declared
“unreasonable” New Jersey's previous requirement that
non-resident attorneys maintain a “principal office” within
New Jersey. In re Sackman, 90 NJ. 521, 448 A.D.2d 1014
(1982). Since in-state office requirements were not raised
in the Piper case, the Court quite properly did not consider
them.
This is the only case that the petitioner is aware of
dealing with an in-state office requirement.
Similarly, New Jersey's requirement that newly
admitted lawyers complete a two year sequence of classes
that can only be taken in New Jersey—where they are
almost always presented on videotape in a classroom—
imposes a constitutionally unacceptable burden on newly
admitted lawyers who do not reside in or very close to
New Jersey. This issue has never been reviewed by this
Court.
This issue is also particularly ripe for review
because the Third Circuit based its decision upholding the
mandatory attendance requirement on what the Third
Circuit acknowledged was dicta repeated in three decisions
of this Court which articulated approval of a requirement
of mandatory attendance at legal education seminars.
17
Tolchin, 111 F.3d at 1109-10, n.4 and n5 (22a, 24a).
However, nothing in any of those three cases, Supreme
Court of Virginia v. Friedman, 487 U.S. 59, 69 (1988);
Frazier v. Heebe, 482 U.S. 641, 648, (1987); Supreme
Court of New Hampshire v. Piper, 470 U.S. 274, 285 n.19
(1985), indicates this Court’s approval of a requirement
that newly admitted out-of-state lawyers attend a two year
sequence of lectures offered only at locations within New
Jersey. These other decisions contemplated the approval
only of a continuing legal education requirement—which
is indisputably a laudable objective—and perhaps at most
an occasional requirement of attendance at an in-state
seminar. The reliance placed on these decisions by the
Third Circuit is a perversion of what this Court appears
to have intended in writing the dicta contained in
Friedman, Frazier and Piper. Such a mis-application of this
Court's holdings beckons now for review.
The two New Jersey requirements that the Third
Circuit's decision upheld are both offensive to the freedom
of commerce for goods and services between the states
envisioned by the framers of the Commerce Clause. As
Alexander Hamilton wrote in The Federalist, No. XXII:
The interfering and unneighborly regulations of
some States, contrary to the true spirit of the
Union, have, in different instances, given just
cause of umbrage and complaint to others, and
it is to be feared that examples of this nature, if
not restrained by a national control, would be
multiplied and extended till they became not
less serious sources of animosity and discord
than injurious impediments to the intercourse
18
between the different parts of the Confederacy.
«The commerce of the German empire is in
continual trammels from the multiplicity of the
duties which the several princes and states
exact upon the merchandises passing through
their territories, by means of which the fine
streams and navigable rivers with which
Germany is so happily watered are rendered
almost useless.» Though the genius of the
people of this country might never permit this
description to be strictly applicable to us, yet
we may reasonably expect, from the gradual
conflicts of State regulations, that the citizens of
each would at length come to be considered and
treated by the others in no better light than that
of foreigners and aliens.
THE FEDERALIST No. 22 (Alexander Hamilton) (footnote
omitted).
The Third Circuit recognized in its decision that
well-established precedent holds that a state regulation
imposing a burden on interstate commerce which is
excessive in comparison to the local benefits achieved
violates the Commerce Clause: Tolchin, 111 F.3d at 1107
(14a). See Pike v. Bruce Church, 397 U.S. 137 (1970). The
Third Circuit also recognized that:
when a state statute “directly regulates or
discriminates against interstate commerce, or
when its effect is to favor in-state economic
interests over out-of-state interests,” it may
generally be struck down without further
inquiry. [Brown-Forman Distillers Corp. v. New
York Liquor Authority,] 476 U.S. [573] at 578-79
[(1986)]; see also Institutional Sys., Inc. v.
19
Computer Curriculum Corp., 35 F.3d 813, 824
(3d Cir. 1994). On the other hand, when a
statute only indirectly affects interstate
commerce and regulates evenhandedly, a
determination must be made as to whether the
State’s interest is “legitimate and whether the
burden on interstate commerce clearly exceeds
the local benefits.” Brown-Forman, 476 U.S. at
579 (citing Pike, 397 U.S. at 142). In both cases,
however, “the critical consideration is the
overall effect of the statute on both local and
interstate activity.” Id.
Tolchin, 111 F.3d at 1106 (14a).
There is little doubt that if heightened scrutiny
were applied to the regulations at issue, the regulations,
particularly the bona fide office rule, would have to be
stricken since they clearly place a burden on interstate
trade.
However, even applying the more lenient standard
of review applied by the Third Circuit—whether the
regulations bear a rational relationship to a legitimate local
purpose, see Pike, 397 U.S. at 142—these regulations
should have been stricken.
Indeed, the Third Circuit’s decision that the bona
fide office rule was rationally related to the local objective of
assuring attorney accessibility to local courts, clients,
parties and lawyers, see Tolchin, 111 F.3d at 1109 (21a),
directly contradicts the holding of this Court in Frazier v.
Heebe, 482 U.S. 641. In that case, this Court was
presented with a challenge to a local rule of the United
States District Court for the Eastern District of Louisiana
20
which required attorneys who did not reside in the
District to maintain an office within the geographic
borders of the District in order to be a member of the bar
of that court. The defendants in Frazier attempted to
justify their in-state office requirement on grounds that
were substantially similar to the four grounds relied upon
by the defendants and the Third Circuit in our case.
Nevertheless, this Court reyected the Frazier in-state office
requirement, and found in language directly applicable to
the case at bar:
- requir is|_unnecessar
and _ irrational. First, the requirement is not
imposed on in-state attorneys. A_ resident
lawyer is allowed to maintain his or her only
office outside of Louisiana. A resident lawyer
with an out-of-state office is equally as
unavailable to the court as a nonresident lawyer
with an out-of-state office. In addition, the mere
fact that an attorney has an office in Louisiana
Ww a i hat
State member _of the state bar. Requiring
iti av isi I and
n in-state answerin
T w hi a
aed oo eee aks As he failure
to require in-state attorneys to have an in-state
office reveals, the location of a lawyer’s office
l wi his_ r her
cases in Federal District Court.
We further conclude that any need the court
may have to ensure the availability of attorneys
21
As observed with regard to state residency
requirements, there is no link between
residency within a state and proximity to a
courthouse. The office requirement does not
Id., 482 U.S. at 649-650, 107 S.Ct. 2607 (1987) (underline
added, italics in original).
While the New Jersey requirements, unlike the
Louisiana requirements dealt with in Frazier, do not
exempt New Jersey residents from the _ office
requirement,’ this Court’s perceptive analysis in Frazier
* While the New Jersey requirements do not today exclude
non-residents of New Jersey from practice, the regulatory history of
the rule being challenged here reveals that in fact non-domiciliaries
of New Jersey were excluded from the practice of law there until
1969, when the rule was changed to a requirement of either domicile
in New Jersey or the maintenance of one’s principal office in New
Jersey, a requirement slightly more onerous than the one found to be
irrational in Frazier. It was not until 1978 that the rule was changed
to its present form, except that the portion defining what a “bona fide
office” is was not added until 1981. See Matter of Kasson, 141 NJ. 83
660 A.2d 1187 (1995) Thus, the history of the regulation now at
issue demonstrates that the current rule was spawned from a lineage
of outrightly protectionist measures that facially discriminated based
on state residence, in violation of the Privileges and Immunities
Clause.
As explained by the New Jersey Supreme Court, “The
additional [bona fide office] requirement was seen as a means of
controlling the occasional practice of law by domiciliaries who
(continued next page)
22
of the lack of any rational reason to require a lawyer to
maintain an office within in a jurisdiction as a precondition
to membership in that jurisdiction’s bar is completely
applicable to this case. As was observed in Frazier, the
mere fact that a lawyer such as the plaintiff might rent an
office in New Jersey, install a telephone, hire a secretary
and even seat himself at a desk in that office on a scheduled
basis does not bestow on that lawyer any advantage. All it
does is create a built-in inconvenience for any lawyer who
wants to practice in New Jersey, and makes many
lawyers think twice about becoming admitted to practice
in New Jersey.
Likewise, the mandatory attendance requirement
simply throws up an obstacle inhibiting and discouraging
lawyers with offices outside of New Jersey from becoming
admitted to the New Jersey Bar and/or practicing law in
New Jersey. The record in this case contains no showing
whatsoever that there is any benefit obtained from
requiring out-of-state lawyers to journey into New Jersey
for the purpose of watching a videotape in a classroom
located in New Jersey. Indeed, what the record does
contain is the unrefuted affidavit of Frank Macchiarola,
Ph.D., an expert in legal education, [mow former] law
school dean, former law professor and former Chancellor
of the New York City Board of Education, who stated
primarily practiced in other jurisdictions or who practiced law only
sporadically in New Jersey”, Kasson, 141 NJ. at 90, 448 A.2d at 1017
(citing Pressler, Current N.J. Court Rules, Comment 1:21-1 (1982)).
Clearly, this is as protectionist a motive as any other tariff designed
to control the market and serves no other legitimate function.
categorically that there were no educational benefits to be
obtained from watching a videotape in a classroom in New
Jersey as compared to being permitted to watch the same
videotapes at a classroom outside New Jersey or in one’s
own home or office.
The decision of the Third Circuit should be
reviewed by this Court since it reached conclusions
regarding state regulation of the interstate practice of law
that have never been addressed by this Court. These
regulations implicate the dormant aspect of the Commerce
Clause and thus raise important questions of federal law.
This matter is appropriate for review by this
Court also because of the great many people who are
impacted by the regulations being challenged here. There
are tens of thousands of lawyers in the New York and
Philadelphia metropolitan areas, and thousands of law
firms. Many of these lawyers and law firms are forced to
maintain New Jersey offices that they would not
otherwise maintain if it were not for the burden imposed
by this rule. Many more lawyers and law firms are forced
by these regulations to forego undertaking representation
of clients when the matters would require practicing law
in New Jersey. On the other side of the issue, thousands
of New Jersey local lawyers are making monopolists’
profits by taking advantage of the infringement of free
commerce between the states that is engendered by these
regulations.
Finally, it should be noted that this matter is
particularly worthy of review by this Court since the
24
regulations at issue here, unlike the run-of-the-mill social
or economic legislation with respect to which states enjoy
wide latitude, will not likely “eventually be rectified by the
democratic process,” City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985). These protectionist rules
were made by non-legislative fiat of the Supreme Court of
New Jersey, which is comprised entirely of local New
Jersey lawyers, and were cleverly crafted to place no
significant burdens upon the members of the local New
Jersey bar while at the same time burdening lawyers
from other states who may wish to practice in New
Jersey.
Ordinary lawyers, out-of-state or in-state, have
little to no voice at all in making these rules, and it is
extremely unlikely that out-of-state lawyers would be able
to convince the New Jersey Supreme Court to even
consider repealing these rules, which have the locally
popular protectionist effect of excluding non-New Jersey
lawyers from practicing in New Jersey and of preserving
New Jersey as a fiefdom where local lawyers do not have
to compete with out-of-state lawyers who are members of
the New Jersey bar, although such lawyers—particularly
New York and Philadelphia lawyers—may be perfectly
able to handle cases in New Jersey. Since any undue
burdens created by these rules are unlikely to be ever
rectified by legislative means,” this Court should review
this case.
25
CONCLUSION
For the reasons set forth herein, petitioners
respectfully request that this Court grant a writ of
certiorari to the United States Circuit Court for the Third
Circuit.
Dated: New York, New York
July 30, 1997
Respectfully submitted,
JAROSLAWICZ & JAROS, ESQS
es
Counsel of Record
150 William Street, 19th floor
New York, New York 10038
(212) 227-2780
and
mer as. RT Penge ESQ.
Lope —=—
v Robes Tolfin
iy Plaintiff pro se
150 William Street, 19th floor
New York, New York 10038
(212) 227-2181
26
stn mat A a Ha
APPENDIX
+o
|
}
:
‘
Decision of the United States Court of Appeals
for the Third Circuit
No. 95-5883
ROBERT J. TOLCHIN, individually and on behalf of all
others similarly situated
Appellant,
ae
THE SUPREME COURT OF THE STATE OF NEW
JERSEY; ROBERT WILENTZ (intended to be the Chief
Judge of the Supreme Court of New Jersey); STEPHEN W.
TOWNSEND (intended to be the clerk of the Supreme
Court); THE NEW JERSEY STATE BOARD OF BAR
EXAMINERS; SAMUEL J. UBERMAN (intended to be the
Assistant Secretary of the New Jersey Supreme Court
who plaintiff believes to direct the State Board of Bar
Examiners); THE NEW JERSEY INSTITUTE FOR
CONTINUING LEGAL EDUCATION; JOSEPH J.
HOGYA (intended to be the Institute for Continuing Legal
Education Skills Training Course Director)
la
i; Aa ii
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 94-cv-04860)
ARGUED SEPTEMBER 10, 1996
BEFORE: SLOVITER, Chief Judge, COWEN and LEWIS,
Circuit Judges.
(Filed May 2, 1997)
OPINION OF THE COURT
LEWIS, Circuit Judge.
To practice law in New Jersey, an otherwise
qualified attorney must maintain an office and attend
continuing legal education courses there. The question
before us is whether such requirements are lawful. We
conclude that they are, and thus will affirm the district
courts grant of summary judgment in favor of the
Appellees. 1. Rule 1:21-1(a) of the Rules Governing the
Courts of the State of New Jersey (the “Rule”) indicates
who may practice and appear in New Jersey courts. The
New Jersey Supreme Court amended this Rule, effective
September 1, 1996, while this appeal was pending. The
Rule now states that
no person shall practice law in this State unless
that person is an attorney, holding a plenary
license to practice in this State, has complied
with the R1:26 skills and methods course
requirement in effect on the date of the attorney's
admission, is in good standing, and maintains a
bona fide office for the practice of law in this
State regardless of where the attorney is
domiciled.
NJ.Ct.R. 1:21-1(a) (1996) (emphasis added).
A.
The Bona Fide Office Requirement
The Rule defines “bona fide office” as “more than a
maildrop, a summer home that is unattended during a
substantial portion of the year, an answering service
unrelated to a place where business is conducted, or a
place where an on-site agent of the attorney receives and
transmits messages only.” Id. -
The Rule also outlines some indicia of a bona fide
office. It
is a place where clients are met, files are kept,
the telephone is answered, mail is received and
the attorney or a responsible person acting on
the attorney’s behalf can be reached in person
and by telephone during normal business
hours to answer questions posed by the
courts, clients or adversaries and to ensure that
competent advice from the attorney can be
3a
obtained within a reasonable period of time.
Id.
The bona fide office requirement is the successor to
New Jersey's more stringent residency requirement for
members of the New Jersey bar. Indeed, as we discuss
below, over the years New Jersey has sought to diminish
the disparity in treatment between resident and
nonresident attorneys. Moreover, the history of New
Jersey’s residency and bona fide office requirements
demonstrates the interests at stake in this case. As we
will explain, each revision has sought to strike a different
balance of the public interest, the interests of the New
Jersey bar and the interests of potential members of the
bar. Because those interests are at the core of the dispute
in this case, we will briefly trace the relevant history and
meaning of the various revisions to the Rule.
At the outset we note that until 1969, New Jersey
required that attorneys be residents of New Jersey in
order to practice there. In re Sackman, 448 A.2d 1014, 1017
(1982); see Pressler, Current New Jersey Court Rules,
Comment R. 1:21-1 (1969). The rationale for this
requirement was that “residence in New Jersey implies a
community commitment in terms of both interest and
activity which better serves local clients and their
interests.” Editorial, Proposed Revision of the Rules of the
Court, 90 NJ.LJ. 164 (1967) (“1967 Editorial”).
Supporters of the residency requirement maintained that
it ensured that the general public had access to qualified
and committed counsel. Id. But while the residency
requirement was in effect until 1969, the New Jersey
Supreme Court had been considering revising it since
1960.
In 1960, the New Jersey Supreme Court appointed
the Coordinating Committee on the Revision of the Rules
of Court to review the state’s rules of court, including the
residency requirement. Sackman, 448 A.2d at 1017.
In 1966, The Committee recommended that the
residence requirement be modified so that a nonresident
attorney could practice law in New Jersey as long as he or
she was “in regular attendance at an office in this state
maintained for the practice of law.” 1967 Editorial; see
Sackman, 448 A.2d at 1017. This proposed revision was
intended to benefit attorneys who chose to live in New
York or Pennsylvania and to practice in New Jersey. 1967
Editorial. These attorneys argued that the residency
requirement placed an unreasonable restriction on their
choice of residence because they were equally — if not
more — qualified to practice in New Jersey than resident
attorneys who primarily practiced in another state. Id.
The proposed revision was tailored to prevent the
occasional practice of law by those who practiced
primarily in another state. Sackman, 448 A.2d at 1017.
The 1966 ‘recommendation was criticized for
several reasons. First, it was unclear what “regular
attendance” meant. 1967 Editorial. Critics suggested that
the proposed revision would allow attorneys who
predominantly practiced in New York or Philadelphia to
meet the requirement by attending a New Jersey office on
5a
a regular but infrequent basis. Id. Furthermore, some
members of the New Jersey bar feared that this revision
would make it more difficult for people to secure qualified
and committed counsel. Id. They believed that New Jersey
residents would be better served by local counsel who
would be “presumably, better equipped, in terms of
currency and facility with New Jersey law and practice.”
Id. Finally, the proposal was criticized because of its
“adverse impact on the economic interests of the New
Jersey bar... .” Id. The proposal was not implemented.
In 1969, the Coordinating Committee proposed
another revision which allowed any attorney to practice in
New Jersey who was either domiciled there or maintained
his or her principal office there. Sackman, 448 A.2d at
1017. While allowing for a more expansive choice of
residence for members of the New Jersey bar, this
recommendation implicitly rejected the possibility of
attorneys engaging in multi-state practice. Id. The New
Jersey Supreme Court implemented this recommend-
ation. Id.
However, the 1969 Rule failed to limit multi-state
practice completely. Some attorneys practiced in New
Jersey by virtue of their residency in the state, but did not
maintain a bona fide office there either because their office
was in another state or because their New Jersey practice -
was irregular. Pressler, Current New Jersey Court Rules,
Comment R. 1:21-1 (1982).
_ - —- ~~ -Thus effective-September—1078,- the -Rule-was-—-
amended again to require that a resident attorney maintain
— -——
a bona fide office in New Jersey and that a nonresident
attorney maintain his or her principal office there. Id. This
version of the Rule was more restrictive of nonresidents
than of residents because only the former had to maintain
their principal offices in New Jersey. As a result of this
requirement, a nonresident attorney's New Jersey practice
could not be subordinate to a practice in another state. Id.
“Bona fide office” was not defined in the 1978 Rule,
leading to another amendment in September, 1981. This
amendment defined a bona fide office as
a place where the attorney or a responsible
person acting on his behalf can be reached in
person and by telephone during normal
business hours. A bona fide office is more than
a maildrop, a summer home that is unattended
during a substantial portion of the year, or an
answering service unrelated to a place where
business is conducted.
Sackman, 448 A.2d at 1018; N.J.Ct.R. 1:21-1(a) (1983).
In 1982, the New Jersey Supreme Court, as part of
its decision in Sackman, amended the Rule again in order to
excise the facial discrimination against nonresidents.
Under the revised Rule, both residents and nonresidents
had to maintain bona fide offices in New Jersey in order to
practice there. Sackman, 448 A.2d at 1019.
Before the Sackman revision, the Rule presumed
that without a principal office in New Jersey, an attorney
would lose contact with New Jersey law and procedure,
~ and would therefore be unable to serve clients
competently. Id. But the Court observed that to the extent
7a
—_—<—__ + rr
this premise might be true, it is only marginally true. Id.
at 1021. The Court concluded that “the public would be
better served if licensed New Jersey attorneys residing, for
example, in New York and Philadelphia were subject to no
greater restrictions in their practice in New Jersey than
those residing in Newark and Camden” because more
qualified attorneys would be available to the New Jersey
public. Id. at 1019.
From 1982 to 1996, the only official changes made
to the Rule were not substantive. However, in 1994,
following a formal hearing concerning a bar member who
had attempted to satisfy the bona fide office requirement
by renting, but not actually using, office space in New
Jersey, the Committee on Attorney Advertising,
appointed by the New Jersey Supreme Court, issued
Opinion 19 to clearly define “bona fide office.” 138 NJ.LJ.
320. The Committee recommended that the attorney be
disciplined and stated that a bona fide office had to be “a
place where clients are met, files are kept, the telephone is
answered, mail is received and a responsible person acting
on the attorney’s behalf can be reached during normal
business hours.” Id. In 1996, the New Jersey Supreme
Court adopted the substance of Opinion 19 in its revision
of the Rule. N.J.Ct.R. 1:21-1 (1996).
Thus, there is no question that over the last few
decades, New Jersey has sought to reduce facial
discrimination against nonresident attorneys. There is
also no -question—that- the bena fide -office requirement
imposes at least some restriction on all attorneys who
8a
TT
wish to practice in New Jersey. One of the issues in this
appeal is the extent to which these restrictions impose a
burden that unconstitutionally discriminates against
nonresident attorneys.
The Continuing Legal Education
Mandatory Attendance Requirement
In addition to the bona fide office requirement.
successful completion of the skills and methods course on
New Jersey practice is required for all attorneys recently
admitted to the New Jersey bar. N.J.Ct.R. 1:26. The course
is intended to prepare attorneys for the transition to legal
practice in New Jersey from law school or from legal
practice in another state. The New Jersey Supreme Court
approved the New Jersey Institute for Continuing Legal
Education (“ICLE”) to administer this course.
In January 1987, the New Jersey Supreme Court
directed ICLE to enforce a mandatory attendance policy for
all registrants of the skills and methods course (the
“mandatory attendance requirement”). ICLE implemented
this directive after an extensive evaluation that included
public notice of the proposal. ICLE currently offers the
skills and methods course in four cycles throughout the
year in three different scheduling formats. Newly admitted
attorneys are free to choose the most convenient course
cycle and format. The first year requirement for the course
requires an attorney to attend 40 hours of lectures.
9a
Attendance is mandatory in all cycles and formats. Rule
1:26 provides that “failure to complete the course
successfully shall render an attorney ineligible to practice
”
law.
Il.
Appellant Robert Tolchin is a resident of New York
State. He graduated from Cardozo Law School in 1992, sat
for and passed the New Jersey Bar Exam in July, 1992, and
was sworn in to the New Jersey bar in December, 1992.
Tolchin contacted ICLE and asked whether he could
satisfy the skills and methods course requirement
through equivalent courses offered in New York or
through home study materials. ICLE informed him that
he must physically attend the courses in New Jersey.
Tolchin has not attended the courses, nor does he
maintain an office in New Jersey. As a consequence,
Tolchin has not satisfied the conditions necessary to
practice law in New Jersey, even though he has been
sworn in to the New Jersey bar.
Tolchin filed suit on October 12, 1994, pursuant to
42 U.S.C. 88 1983 and 1985. The suit raises a myriad of
constitutional challenges to the bona fide office and the
mandatory attendance requirements. Specifically, Tolchin
argues that the bona fide office and the mandatory
attendance requirements violate the Commerce Clause,
the Privileges and Immunities Clause of Article IV, section
2, and the Equal Protection Clause of the Fourteenth
10a
Amendment to the Constitution. He also argues that the
implementation and teaching of the skills and methods
course violate the Due Process Clause of the Fourteenth
Amendment to the Constitution.’ Tolchin named as
defendants (1) the Supreme Court of New Jersey; (2)
Chief Justice Robert N. Wilentz;* (3) the Clerk of the
Supreme Court of New Jersey, Stephen W. Townsend;
(4) the New Jersey Board of Bar Examiners; (5) the
Board’s Secretary, Samuel J. Uberman; (6) ICLE; and (7)
Skills and Methods Course Director Joseph J. Hogya
(collectively the “Appellees”).
The Appellees filed a motion for summary
judgment. The district court referred the case to a
magistrate judge. The magistrate judge filed a Report and
Recommendation which recommended that summary
judgment be granted. The district court adopted the report
and recommendation and entered summary judgment in
favor of the Appellees. Tolchin then filed this appeal. The
district court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
As this is an appeal from the district court’s Order
granting summary judgment to Appellees, we conduct a
de novo review. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d
Tolchin also argues that ICLE’s application for summary
judgment under the Eleventh Amendment should be denied; the
individual defendants are proper parties; and summary judgment
should be granted in his favor. Because of our disposition of the
merits, we need not consider these issues.
? Chief Justice Wilentz resigned on July 1, 1996. He has been
succeeded as Chief Justice by Deborah T. Poritz.
lla
231, 236 (3d Cir. 1995). We must apply the same test
used by the district court; namely, whether there is “no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c); see Hersh v. Allen Products Co., 789 F.2d 230,
232 (3d Cir. 1986). In determining whether to grant a
motion for summary judgment, we must draw all
reasonable inferences in favor of Tolchin, as the non-
moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303,
307 n.2 (3d Cir. 1983).
Ill.
A.
Tolchin’s Commerce Clause Challenge
Tolchin argues that the district court erroneously
dismissed his Commerce Clause challenge to the bona fide
office and the mandatory attendance requirements. He
states that “the defendants have implemented regulations
that unconstitutionally impair interstate commerce
without sufficient justification and have thus violated the
‘dormant’ facet of the Commerce Clause.” Tolchin Br. at
16.
12a
— ee ee eee ee — — —_— —
The United States Constitution provides that
“Congress shall have Power . . . to regulate Commerce . . .
among the several States.” U.S. Const. art. I, § 8. While
the Commerce Clause explicitly speaks only to the power
of Congress to regulate interstate commerce, it has been
interpreted to contain “an implied limitation on the power
of the States to interfere with or impose burdens on
interstate commerce.” Western & Southern Life Ins. Co. v.
State Bd. of Equalization of California, 451 U.S. 648, 652
(1981). This implied limitation is sometimes referred to
as the ‘negative’ or ‘dormant’ Commerce Clause, and it is
this aspect of Commerce Clause jurisprudence that is at
issue in this case. .
The dormant aspect of the Commerce Clause
“prohibits economic protectionism — that is, regulatory
measures designed to benefit in-state economic interests
by burdening out-of-state competitors.” New Energy Co.
of Indiana v. Limbach, 486 U.S. 269, 273 (1988). State
legislative enactments, executive regulations and judiciary-
approved rules can all be subject to Commerce Clause
analysis. See e.g., New Energy, 486 U.S. 269 (statute); Pike
v. Bruce Church, Inc., 397 U.S. 137 (1970) (executive
order); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)
(judiciary-approved rule).
When conducting a dormant Commerce Clause
analysis, we seek to balance the national interest in
vibrant interstate commerce with the local interests
a _——~_— =
13a
promoted by the state regulation. In Pike, the Supreme
Court stated that
Where the statute regulates even-handedly to
effectuate a legitimate local public interest, and
its effects on interstate commerce are only
incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in
relation to the putative local benefits. . . . If a
legitimate local purpose is found, then the
question becomes one of degree.
397 US. at 142 (citation omitted) (emphasis added).
In Brown-Forman Distillers Corp. v. New York
Liquor Authority, 476 U.S. 573 (1986), the Supreme Court
later refined its Commerce Clause analysis by holding that
when a state statute “directly regulates or discriminates
against interstate commerce, or when its effect is to favor
in-state economic interests over out-of-state interests,” it
may generally be struck down without further inquiry.
476 U.S. at 578-79; see also Institutional Sys., Inc. v.
Computer Curriculum Corp., 35 F.3d 813, 824 (3d Cir.
1994). On the other hand, when a statute only indirectly
affects interstate commerce and regulates evenhandedly, a
determination must be made as to whether the State’s
interest is “legitimate and whether the burden on
interstate commerce clearly exceeds the local benefits.”
Brown-Forman, 476 U.S. at 579 (citing Pike, 397 U.S. at
142). In both cases, however, “the critical consideration is
the overall effect of the statute on both local and interstate
activity.” Id.
In this case, the district court, adopting in full the
l4a
—_ | —— _
Magistrate’s Report and Recommendation, applied the
second — the “balancing rule” — standard, which it
formulated as follows:
if legislation is facially neutral, and only has an
incidental effect on commerce, the legislation
will be upheld unless the burden on commerce
is “clearly excessive in relation to the putative
local benefits.”
Report and Recommendation of Magistrate Judge at 21
(“Magistrate Report”) (emphasis added) (quoting Pike,
397 U.S. at 142) (adopted by district court in Tolchin v.
Supreme Court of the State of New Jersey, No. 94-4860
(D.N.J. Dec. 14, 1995)).
Although we agree with the district court’s
selection of the balancing rule test and its result, we
disagree with its articulation of the test. For the balancing
rule test to apply, a state’s action must not be merely
‘facially neutral,’ but must also be neutral in effect. Brown-
Forman makes clear that heightened scrutiny applies not
only when legislation is facially discriminatory, but also
when a state statute or regulation’s “effect is to favor in-
State economic interests over out-of-state interests. .
476 USS. at 579.
Tolchin argues that the bona fide office and
mandatory attendance ‘requirements favor in-state
economic interests and amount to “economic
15a
protectionism” that must be subject to the Commerce
Clause’s heightened scrutiny standard of review. Just as a
law forbidding sleeping under a bridge falls more heavily
on the shoulders of the indigent than on those of the
wealthy, Tolchin argues, these requirements fall more
heavily on the shoulders of nonresidents than on those of
residents.
This analogy sheds little light on the issue before
us. Most laws and regulations affect different people
differently, depending on their circumstances. The
relevant question here is whether there is any differential
treatment of nonresident attorneys that “favors in-state
interests over out-of-state interests” and “the critical
consideration is the overall effect of the statute on both
local and interstate activity.” Brown-Forman, 476 U.S. at
579.
All parties agree that, on its face, New Jersey’s
bona fide office requirement does not discriminate against
out-of-state attorneys. See NJ.Ct.R. 1:21-l(a). However,
Tolchin maintains that the bona fide office requirement
effectively favors resident attorneys. We disagree. All
attorneys who wish to practice in New Jersey must have
a bona fide office. As one commentator has observed, the
requirement’s intent was to prevent occasional practice in
New Jersey by an attorney once admitted, but who now
practices primarily in another state. Pressler, Current
New Jersey Court Rules, Comment R. 1:21-l1. Such an
attorney could lose his or her familiarity with New Jersey
law and its development. Id. Thus, it is reasonable to
be l6a
Ilia ccmenenseemnmniiaiiiaieaciaiadiaiaaaauaill
assume that the only attorneys actually burdened by this
requirement are those who wish to maintain a small or
sporadic practice in New Jersey. Tolchin argues that
although such attorneys are required to spend the money
necessary to maintain a bona fide office, they will not
receive the comparable benefits that most attorneys with
larger New Jersey practices would enjoy. While Tolchin
might be right, his argument fails to implicate the
Commerce Clause because such attorneys may be New
Jersey residents as well as nonresidents.
Tolchin has also argued that it is less expensive for
New Jersey residents to have a bona fide office because
they can maintain one in their homes. Yet, a bona fide
office is more than a mere address — it is a functioning
office. Tolchin has not shown that more than a few
attorneys practice from their homes, so that any
advantage which inures to resident attorneys in this
regard is minimal. All attorneys must incur some
expense in order to comply with this requirement. Any
incidental discrimination caused by the bona fide office
requirement is not based on residency status, but on the
size and type of an attorney’s practice.
We reach the same conclusion with respect to New
Jersey’s mandatory attendance requirement, which does
not discriminate on its face nor in effect against out-of-
State interests any more than the bona fide office
requirement. It, too, applies equally on its face to residents
and nonresidents and does not effectively favor resident
attorneys. Rather, any burden it imposes is directly
17a
proportional to the distance an attorney must travel to a
skills and methods course site. Tolchin implicitly
acknowledges that he is no more personally burdened by
this requirement than many New Jersey attorneys, as he
repeatedly notes how close New York is to New Jersey.
While it is true that the mandatory attendance
requirement may present difficulties for those residing
hundreds or thousands of miles from New Jersey, we
believe it is safe to assume that few attorneys live that far
from where they intend to practice. See Frazier v. Heebe,
482 U.S. 641, 648-49 (1987) (“As a practical matter, a high
percentage of nonresident attorneys willing to take the
state bar examination and pay the annual dues will reside
in places ‘reasonably convenient’ to the” court.); Supreme
Court of New Hampshire v. Piper, 470 U.S. 274, 286-87
(1985) (“One may assume that a high percentage of
nonresident lawyers willing to take the state bar
examination and pay the annual dues will reside in places
reasonably convenient to New Hampshire.”). We do not
believe that the mandatory attendance requirement was
purposefully intended to discriminate against the putative
class of attorneys who intend to practice a great distance
from New Jersey. It is safe to assume that most of the
attorneys affected by this regulation are residents of New
Jersey, New York and Pennsylvania.
We conclude that neither the bona fide office nor the
mandatory attendance requirement -purposefully or
arbitrarily discriminate against out-of-state interests.
18a
Because the bona fide office and the mandatory
attendance requirements do not directly regulate or—
discriminate against interstate commerce, the heightened
scrutiny test is not applicable. See Instructional Sys., Inc.
v. Computer Curriculum Corp., 35 F.3d 813, 824 (3d Cir.
1994). Thus, this case is distinguishable from the
Commerce Clause cases that have applied heightened
scrutiny to waste flow control ordinances. The Supreme
Court has found that flow control ordinances have the
effect of depriving “competitors, including out-of-state
firms, of access to a local market... .” C & A Carbone, Inc.
v. Town of Clarkstown, 114 S. Ct. 1677, 1679 (1994); see
also Atlantic Coast Demolition & Recycling, Inc. v. Board of
Chosen Freeholders of Atlantic County, 48 F.3d 701 (3d Cir.
1995). Because we have found no such deprivation, those
cases do not mandate that we apply heightened scrutiny
here. Accordingly, the district court was correct in
applying the balancing rule test. Under this test, we must
compare the local benefits of a regulation with the
incidental burdens that it imposes on interstate commerce
in order to determine whether the burdens are clearly
excessive. Id.
Appellee New Jersey Supreme Court argues that
the bona fide office requirement has the benefits of
assuring the competence, accountability and accessibility
of attorneys for the benefit of clients, courts, counsel and
parties. Tolchin responds that there is no rational
relationship between these benefits and the bona fide office
19a
requirement. While we agree with Tolchin’s analysis in
part, we nonetheless find that a rational relationship exists
between the benefit of attorney accessibility and the bona
fide office requirement.
In a case where in-state offices were required only
of nonresidents, the United States Supreme Court held
that there is no rational relationship between such a
requirement and attorney competence. Frazier v. Heebe,
482 U.S. 641, 649 (1987) (“the mere fact that an attorney
has an office in [a jurisdiction] surely does not warrant
the assumption that he or she is more competent than an
out-of-state member of the state bar.”); see also Barnard v.
Thorstenn, 489 U.S. 546, 555 (1989) (“We can assume
that a lawyer who anticipates sufficient practice in[a
jurisdiction] to justify taking the bar examination and
paying the annual dues . . . will inform himself of the laws
of the [jurisdiction].”); Supreme Court of New Hampshire
v. Piper, 470 U.S. 274, 285 (1985) (Court will not assume
that “a nonresident lawyer — any more than a resident —
would disserve his clients by failing to familiarize himself
with the [local law].”). We believe that this holds true for
the facts presented in this case as well. The Appellees
have put forth no credible arguments as to why the bona
fide office requirement would make an attorney more
competent.
Nor do we find~that New Jersey’s bona fide office
requirement increases attorney accountability. New
Jersey requires that all nonresident attorneys designate
the Clerk of the New Jersey Supreme Court as agent for
20a
it eneeeteeemnemeemmiaieaimeiailiiitleiniiidaiiciiiiiiiaiiuaiaidill
receipt of service of process. N.J.Ct.R. 1:21-1(a). The New
Jersey Supreme Court can therefore discipline ll
members of the New Jersey bar, regardless of residency.
The Appellees make no compelling argument as to how
New Jersey’s bona fide office requirement is rationally
related to attorney accountability.
However, we do believe that the bona fide office
requirement has a rational relationship to the benefit of
attorney accessibility for clients, courts, counsel and
parties, and our belief is borne out by a New Jersey case
which highlights the problems caused by attorneys who
_ fail to maintain bona fide offices in New Jersey. In In The
Matter of Kasson, 141 NJ. 83 660 A.2d 1187 (1995), the
New Jersey Supreme Court upheld the disciplining of an
attorney pursuant to Rule 1:21-1(a) because the trial court
had serious difficulty locating him during the course of
litigation. Kasson’s New Jersey office was never used, his
name was misspelled on a sign and the office number on
his letterhead“was not the same as the number on the
sign, which was not the same as the number of the actual
office. Id. See also Opinion’ 19, above, pp. 11-12
(disciplining a bar member for renting, but not using,
office in New Jersey). In our view, this case demonstrates
that there is satisfactory basis to find a rational
relationship between the bona fide office requirement and
the intended benefit of attorney accessibility.°
* Chief Judge Sloviter agrees that the bona fide office
requirement has a rational relationship to the benefit of attorney
accessibility for clients, courts, counsel and parties. Inasmuch as the
(continued next page)
2la
Thus, while the bona fide office requirement does
impose the burden of maintaining an office on some
attorneys who would prefer not to maintain one, we
believe that those most burdened do not constitute a very
large class. This class may include those who practice
solely, but sporadically, in New Jersey; those who
occasionally practice in New Jersey as part of a larger
practice based in another state; and those who prefer to
practice without maintaining any office at all. The
requirement’s burden affects interstate commerce in that
it limits the mobility of some lawyers and reduces the
options for consumers of the services they provide.
However, under the balancing test, we find that the
burden on interstate commerce does not clearly outweigh
the benefit received from the bona fide office requirement.
See Instructional Sys., 35 F.3d at 824. This is not to say
that such a requirement is the most narrowly tailored
solution to the problem of attorney accessibility. We
merely hold that such a requirement is rationally related
to the benefit it is supposed to ensure.”
Likewise, we believe that the mandatory attendance
challenged rule can be sustained on that basis, she does not join the
portion of this opinion that rejects the New Jersey Supreme Court's
argument that the bona fide office requirement helps assure the
competence and accountability of attorneys.
* We also note that the United States Supreme Court, in
dicta, has approved just such a requirement. Supreme Court of
Virginia v. Friedman, 487 U.S. 59, 69-70 (1988) (Virginia “requires
that attorneys admitted on motion maintain an office for the
practice of law in Virginia... . The office requirement furnishes an
alternative to the residency requirement. . . .”).
requirement for the skills and methods course is
rationally related to the benefits it is intended to promote.
The skills and methods classes are intended to train
attorneys new to the New Jersey bar and to protect the
public from untrained attorneys. Mandatory attendance at
the course serves a defensible educational purpose: it
ensures that attorneys hear — if noi listen to — those
topics thought to be important by the Appellees.
In support of his argument to the contrary,
Tolchin submitted an affidavit from Dean Frank
Macchiarola of the Cardozo Law School which, Tolchin
argues, indicated that mandatory attendance served no
valid educational function. However, the Macchiarola
affidavit does not make such sweeping claims. It is limited
to disputing some of the reasons proffered by Hogya for
the mandatory attendance requirement; to asserting that
mandatory attendance has no advantage over other
approaches; and to extolling the advantages of customized
learning. As a result, this affidavit fails to raise a genuine
issue of material fact as to whether the mandatory
attendance requirement is rationally connected to its
intended benefits.
Moreover, the burdens on interstate commerce
imposed by the mandatory attendance requirement for the
skills and methods course are relatively small, when
compared to the benefits it promotes. The first year
component of the course requires an attorney to invest a
total of 40 hours. For that investment, New Jersey can be
confident that attorneys new to its bar are at least
minimally familiar with its laws. This requirement is
even a small burden for those attorneys who want to
practice in more than one state. Finally, the commuting
burden for Tolchin, who is a bridge or two away from
New Jersey, is actually less than it is for many New
Jersey residents. See id.
Because this requirement appears to be a
substantial burden only for the relatively few nonresident
attorneys who reside a great distance from New Jersey,
we do not find that such a burden clearly outweighs the
benefits promoted by this requirement. Nor has Tolchin
demonstrated that this widely accepted educational policy
is in some way so wrong that we must declare it
irrational.’
Even if the New Jersey rules were to have an
element of “economic protectionism,” we do not find that
the requirements at issue in this case are so protectionist
as to fail in the context of a dormant Commerce Clause
analysis. Thus, we conclude that the district court
> We note that the Supreme Court, in dicta, has approved of
mandatory attendance requirements for continuing legal education.
See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 69 (1988)
(court can “require mandatory attendance at periodic Continuing
Legal Education courses.”); Frazier v. Heebe, 482 U.S. 641, 648,
(1987) (“[O}ther more effective means of ensuring the competence of
bar members are available ... including examination or seminar
attendance requirements.”); Supreme Court of New Hampshire v.
Piper, 470 U.S. 274, 285 n.19 (1985) (“A less restrictive alternative
would be to require mandatory attendance at periodic seminars on
state practice. There already is a rule requiring all new admittees to
complete a ‘practical skills course’ within one year of their
admission.”).
24a
properly relied upon the Pike balancing test, and concur
with its result. New Jersey’s bona fide office and
mandatory attendance requirements generally burden
nonresident attorneys to the same degree that they
burden resident attorneys. The fact that these
requirements may burden commerce in some incidental
way is not enough to support Tolchin’s claim.
Moreover, states clearly have a substantial interest
in assuring the availability of and overseeing attorneys
practicing within their borders. See Leis v. Flynt, 439 U.S.
438, 444 n.5 (1978) (recognizing “the traditional authority
of state courts to control who may be admitted to
practice” before them); Goldfarb v. Virginia State Bar, 421
U.S. 773, 792 (1975) (recognizing state courts have “broad
power to establish standards for licensing practitioners
and regulating the practice of professionals”). And finally,
where heightened scrutiny is not warranted, we must not
“second-guess the empirical judgment of lawmakers
concerning the utility of legislation.” CTS Corp. v.
Dynamics Corp. of America, 481 U.S. 69, 92 (1987)
(quoting Kassel v. Consolidated Freightways Corp., 450
U.S. 662, 679 (1981) (Brennan, J., concurring)).
Tolchin argues that, at the very least, summary
judgment should be denied so as to allow further
investigation of the burdens of these requirements. We
find that further investigation is unnecessary because, as
the Fourth Circuit noted in a similar context, to require
hearings in such cases
would deal a serious blow to the capacities of
25a
the states and localities to further even the
most basic regulatory purposes. As_ the
Commerce Clause is implicated by almost
every economic regulation .. . and its shadow
extends equally far. . . such hearings would be
an almost constant process.
Goldfarb v. Supreme Court of Virginia, 766 F.2d 859, 862
(4th Cir. 1985). We agree.
Tolchin’s Privileges and Immunities Challenge
Tolchin further claims that the bona fide office and
mandatory attendance requirements violate the Privileges
and Immunities Clause.
The Privileges and Immunities Clause provides
that “Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.” U.S.
Const. art. IV, § 2. This clause was intended to “fuse into
one Nation a collection of independent, sovereign States.”
Supreme Court of New Hampshire v. Piper, 470 U.S. 274,
279 (1985) (quoting Toomer v. Witsell, 334 U.S. 385, 395
(1948)). Under this clause, the terms “citizen” and
“resident” are used interchangeably. Piper, 470 U.S. at 279
n.6.
The Privileges and Immunities Clause applies only
“with respect to those ‘privileges’ and ‘immunities’
bearing on the vitality of the Nation as a single entity.” Id.
at 279 (quoting Baldwin v. Montana Fish & Game
26a
a er ee
Commission, 436 U.S. 371, 383 (1978)). The United States
Supreme Court has found that “one of the privileges
which the Clause guarantees to citizens of State A is that
of doing business in State B on terms of substantial
equality with the citizens of that State.” Piper, 470 U.S. at
280 (quoting Toomer v. Witsell, 334 U.S. 385, 396 (1948)).
The Supreme Court has recognized the practice of law as a
privilege under the Privileges and Immunities Clause,
“and that a nonresident who passes a state bar
examination and otherwise qualifies for practice has an
interest protected by the Clause.” Barnard v. Thorstenn,
489 U.S. 546, 553 (1989); see also Supreme Court of
Virginia v. Friedman, 487 U.S. 59, 65 (1988): Piper, 470
U.S. at 279-83. The practice of law is protected by the
Privileges and Immunities Clause because it plays a vital
role in the nation’s economy and facilitates the vindication
of individual and societal rights. Piper, 470 U.S. at 280-81.
If a state statute or regulation imposes identical
requirements on residents and nonresidents alike and it
has no discriminatory effect on nonresidents, it does not
violate the Privileges and Immunities Clause. Lutz v. City
of York, Pennsylvania, 899 F.2d 255, 263 (3d Cir. 1990).
But when a challenged restriction deprives nonresidents
of a privilege or immunity protected by this clause, it is
invalid unless “(i) there is a substantial reason for the
difference in treatment; and (ii) the discrimination
practiced against nonresidents bears a_ substantial
relationship to the State’s objective.” Piper, 470 U.S. at
284. In addressing these questions, we consider, among
other things, whether less restrictive means of regulation
27a
are available. Barnard, 498 U.S. at 552-53. Of course, we
must distinguish between incidental discrimination
against nonresidents and discrimination that imposes too
heavy a burden on their privileges. See id. at 557.
Over the last ten years, the United States Supreme
Court has considered whether a number of bar admission
requirements violate the Privileges and Immunities
Clause. In 1985, the Court struck down a New Hampshire
residency requirement, which limited state bar admission
to New Hampshire residents, as a violation of the
Privileges and Immunities Clause. Piper, 470 U.S. at 288.
The Court determined that the residency requirement
deprived nonresidents of a protected privilege. Id. at 284.
New Hampshire defended its rule, contending that
nonresident bar members would be less likely to stay
current with local rules and procedures, to behave
ethically, to do pro bono work in the state and to be
accessible to clients and the court. Id. at 285. The Court
disagreed with each of these contentions, stating that a
nonresident attorney’s interest in his or her reputation
would provide the same incentive to maintain high
standards as would that of a resident attorney. Id. at 286.
The Court found that New Hampshire had not shown a
“substantial reason” for discriminating against
nonresident bar applicants and had not demonstrated that
the discrimination bore a close relationship to its
objectives. Id. at 287. The Court concluded that less
restrictive alternatives — including mandatory attendance
at seminars on state practice — would support the State’s
interest in ensuring that admitted attorneys were familiar
with local rules and procedure. Id. at 284-87.
Similarly, in Friedman, the Supreme Court struck
down a Virginia rule that permitted admission to the
Virginia bar simply on motion for attorneys who had
become permanent residents of Virginia and were licensed
in another state. Friedman, 487 U.S. at 61. Nonresidents of
Virginia admitted to practice in another state, however,
were required to take the Virginia bar exam. The Supreme
Court determined that Virginia’s discretionary admissions-.
policy violated the Privileges and Immunities Clause by
denying nonresident attorneys the Opportunity to practice
law in Virginia on terms substantially equal to those of
resident attorneys. Id. at 70. In so holding, the Court
specifically noted that Virginia’s requirement that
attorneys maintain in-state offices furnished a less
restrictive alternative to protect its regulatory interests.
Id.
More recently, in Barnard v. Thorstenn, 489 U.S.
546 (1989), the Supreme Court struck down a residency
requirement incorporated into a District Court of the
Virgin Islands Rule. This rule provided that before an
otherwise qualified attorney could be admitted, that
attorney must establish that he or she resides and intends
to continue residing in the Virgin Islands. Id. at 559. The
Supreme Court held that this residency requirement
violated the Privileges and Immunities Clause by
excluding nonresidents from the Virgin Islands bar. Id.
Moreover, the Court determined that the residency
29a
requirement did not bear a substantial relation to the
District Court of the Virgin Islands’ objectives, which
included ensuring the availability of nonresident attorneys
and maintaining an adequate level of competence in the
local laws, which were infrequently published. Id. at 558-
59.
The Court found that less restrictive means existed
to address these concerns. Nonresidents could -associate
with local counsel, relieving the State of any burden
associated with accommodating nonresidents’ travel
schedules. Id. at 555. The Court also found that if the
Virgin Islands failed to publish legal materials in a timely
manner, the problem of attorneys staying current with
local law would be just as severe for residents as
nonresidents. Id. at 556.
Since 1985, then, the United States Supreme Court
has struck down restrictions on state bar admission
requirements, and has indicated that a state must treat
residents and nonresidents equally when it considers an
individual's admission to the bar. As a result of these
decisions, all states have eliminated residency-based bar
admission requirements.° A state’s interest in regulating
the practice of law is similar to its interest in regulating
admission to the bar, and the Supreme Court cases in this
area offer us guidance in our analysis.
° See Brian N. Corrigan et al., Admission?, Yes; Practice? No:
New York Inconsistent Treatment of Nonresident Attorneys, 6 St. John’s
J. Legal Comment. 383, 390 (1991).
Our Privileges and Immunities analysis has two
steps. First, do the bona fide office and mandatory
attendance requirements discriminate against nonresident
attorneys? Second, if they do, is the imposition too heavy
a burden on the privileges of nonresidents, and does it fail
to bear a substantial relationship to New Jersey’s
objective? See Barnard v. Thorstenn, 489 U.S. 546, 557
(1989).
As noted in Section Ill. A., above, both
requirements similarly affect residents and nonresidents.
Resident and nonresident attorneys alike must maintain a
New Jersey office. Moreover, as the district court noted,
the bona fide office requirement provides New Jersey with
a reasonable avenue through which it can protect its
interest of ensuring that attorneys licensed in New Jersey
are available to New Jersey courts, practitioners and
clients. See Friedman, 487 U.S. at 69-70 (recognizing that
an in-state office requirement was an appropriate and less
restrictive means of enforcing Virginia’s full time practice
restriction).
Similarly, the mandatory attendance requirement
applies equally to residents and nonresidents. Tolchin
argues that the mandatory attendance policy is
discriminatory because it unduly burdens nonresident
attorneys who may not be able to find time to attend the
skills and methods class. However, as we have already
noted, a New Jersey resident may need to travel farther
and longer than someone in New York City to get to a
course site. In other words, the discrimination here is
3la
based on the inconvenience of course sites and not on
residence status. Nonresidents who wish to practice law
in New Jersey are required to make the effort to attend
continuing education courses. This is a rational
requirement, given the need to educate attorneys new to
the New Jersey bar and given traditional educational
approaches.’
We conclude that the bona fide office and
mandatory attendance requirement do not impose a
disproportionately heavy burden on nonresidents. These
requirements bear a substantial relationship to New
Jersey's goal of regulating the practice of law to the benefit
of the public and are not overly restrictive of attorneys.
Thus, these requirements do not violate the Privileges and
Immunities Clause. See Barnard v. Thorstenn, 489 U.S. at
557.
Cc.
~
Tolchin’s Equal Protection Clause Challenge
The Fourteenth Amendment provides that no
state shall “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV.
The threshold question is what standard governs the
equal protection analysis in this case.
” Moreover, as we noted above, the United States Supreme
Court has indicated in dicta that such a requirement was consistent
with the Privileges and Immunities Clause. Friedman, 487 U.S. at 69.
(continued next page)
32a
a
Tolchin argues that the right to practice law in
New Jersey is a fundamental right for equal protection
purposes. Thus, Tolchin claims, the district court erred in
granting summary judgment to the Appellees on his
equal protection challenge because it did not apply the
strict scrutiny standard of review to the bona f '> office
and the mandatory attendance requirements. In the
alternative he argues that these requirements would not
even survive rational basis review.
We have found that 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 interest.” 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)). However.
where legislation establishes a classification that
implicates fundamental rights or draws upon suspect
distinctions such as race, religion or alienage, the
legislation must meet strict scrutiny analysis.
Schumacher, 965 F.2d at 1266. While we are not reviewing
legislation in the traditional sense, judiciary-approved
rules fall within the ambit of the Equal Protection Clause.
Id. at 1266 n.6.
The Supreme Court has indicated that the right to
practice law is not a fundamental right for the purposes of
the Fourteenth Amendment. See Leis v. Flynt, 439 U.S.
438, 442 n5 (1979) (“[T]he suggestion that the
Piper, 470 U.S. at 285 n.19; see n.5 above.
33a
Constitution assures the right of a lawyer to practice in
the court of every State is a novel one, not supported by
any authority brought to our attention.”); Schware v.
Board of Bar Examiners, 353 U.S. 232, 238-39 (1957) (“[A]
State can require high standards of qualification . . . before
it admits an applicant to the bar, but any qualification
must have a rational connection with the applicant's
fitness or capacity to practice law.”). Moreover, we have
flatly rejected the argument that the practice of law is a
fundamental right protected by the Equal Protection
Clause. Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir.
1987); In the Matter of Roberts, 682 F.2d 105, 108 (3d Cir.
1982).
Tolchin claims that Supreme Court of New
Hampshire v. Piper, 470 U.S. 274 (1985), supports his
position. In Piper, the Court determined that the “the
opportunity to practice law should be considered a
‘fundamental right” which “falls within the ambit of the
Privileges and Immunities Clause.” Id. at 281. Tolchin
attempts to bootstrap this use of the term “fundamental
right” into equal protection jurisprudence. However,
“fundamental” privileges and immunities are not
interchangeable with the rights deemed “fundamental” for
equal protection purposes. See Friedman v. Supreme Court
of Virginia, 822 F.2d 423, 426 (4th Cir. 1987), affd, 487
U.S. 59 (1988) (recognizing that “the Privileges and
Immunities Clause protects more [rights] than those
rights which are considered fundamental individual rights
protected by the Fourteenth Amendment”).
34a
NL
The bona fide office and mandatory attendance
requirements apply to all attorneys who want to practice
in New Jersey. They do not create a suspect classification
based on race, religion or alienage. Accordingly, there is
simply no basis upon which Tolchin can credibly argue
that strict scrutiny is the appropriate standard of review.
See Schumacher, 965 F.2d at 1266. We conclude that
Tolchin’s claim that the bona fide office and mandatory
attendance requirements deny him the right to practice
law is subject to a rational basis review.
Tolchin argues that even if heightened scrutiny is
unwarranted, the bona fide office and the mandatory
attendance requirements fail to survive rational basis
review. He claims that these requirements are not
rationally related to New Jersey's interest in regulating the
practice of law. To demonstrate the alleged irrationality of
the requirements, Tolchin Suggests a number of
alternatives, less burdensome to him, that the New Jersey
Supreme Court could implement to achieve its objectives.
We need not consider these alternatives. For the purposes
of rational basis review, we have held that a rule need not
be the least restrictive means of achieving a permissible
end. Id. So long as the New Jersey Supreme Court “could
rationally have decided” that its action would further its
goal, “the Equal Protection Clause is satisfied.” Minnesota
v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981); see
also Parham v. Hughes, 441 U.S. 347, 351 (1979) (“Under
a rational basis test, a law is entitled to a presumption of
validity.”).
35a
Both the bona fide office and mandatory attendance
requirements are rationally related to New Jersey's
interest in regulating the practice of law. We have already
concluded that the bona fide office requirement is rationally
related to New Jersey's interest in ensuring that attorneys
admitted to practice law in New Jersey are available to
New Jersey courts. See Section III. A., above. The fact that
Tolchin and others similarly situated may be burdened by
this requirement is not enough to deem the requirement
invalid under the rational relation test. See Schumacher,
965 F.2d at 1266. The skills and methods course was
developed to assist attorneys in their transition to practice
in New Jersey from law school or practice in another
state. The mandatory attendance requirement, by
ensuring that attorneys be, at a minimum, present at the
Continuing Legal Education classes, will tend to ensure
that attorneys absorb the lessons of the course. While
Tolchin may be correct in maintaining that he could just
as easily learn the material from the comfort of his own
home, rational basis review does not allow us to conclude
that New Jersey was constitutionally required to
accommodate him. See Clover Leaf Creamery Co., 449 U.S.
at 466.
In summary, the right to practice law is not a
fundamental right for the purposes of the Equal Protection
Clause. Thus, Tolchin’s claim fails because the bona fide
office and mandatory attendance requirements are
rationally related to New Jersey’s legitimate interests in
regulating the practice of law within its borders.
36a
———————
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D.
Tolchin’s Due Process Challenge
Rule 1:26 provides that the skills and methods
“course format shall be set forth in the rules of the Board
of Bar Examiners.” N.J.Ct.R. 1:26. The Board has not
promulgated any rules regarding the skills and methods
course. Tolchin argues that the implementation of the
skills and methods course violate [sic] the Due Process
Clause of the Fourteenth Amendment to the Constitution
because the New Jersey Board of Bar Examiners failed to
adopt the rules governing the format and curriculum of
the course through formal rulemaking procedures,
thereby depriving him of his right to earn his livelihood
by practicing in New Jersey.
The Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty or property
without due process of law.”* U.S. Const. amend. XIV. To
satisfy the requirements of the Due Process Clause, laws
and regulations must provide specific standards which
avoid arbitrary and discriminatory enforcement. Grayned
v. Rockford, 408 U.S. 104, 109 (1972). An agency’s failure
to follow its rules and regulations, however, is not a per
se violation of due process. See United States v. Caceres,
440 U.S. 741 (1979). Rather, the Due Process Clause is
* Because of the result that we reach in this case, we need
not decide the related question of whether one who has passed a state
bar exam, but who is for some reason ineligible to practice, has a
property interest protected by the Due Process Clause.
37a
implicated only when an agency violates regulations
mandated by the Constitution or by law; or when “an
individual has reasonably relied on an agency regulations
[sic] promulgated for his guidance or benefit and has
suffered substantially because of their violation by the
agency.” Id. at 752-53. Due process may also be violated if
the government acts arbitrarily or capriciously. Grayned,
408 U.S. at 109.
Rule 1:26 is not mandated by the Constitution or
by law. Rather, it is a rule promulgated by the New Jersey
Supreme Court for the oversight of the New Jersey bar.
Furthermore, Tolchin has not made any showing that he
has reasonably relied on Rule 1:26 to his detriment.
Rather, the record indicates that Tolchin was
unaware of what was required to practice in New Jersey.
The New Jersey Supreme Court has approved specific
standards which guide the administration of the skills and
methods course. See Magistrate Report at 14-16. That
court specifically directed ICLE to implement a mandatory
attendance policy. This directive was only implemented
after public notice of the proposal. The record indicates
that the Appellees have in all ways — except for
promulgating the Board of Law Examiners Rules — acted
with forethought and consistency in regard to the skills
and methods course. Thus, Tolchin has suffered no
violation of due process. See Grayned, 408 U.S. at 109.
Tolchin has not been excluded from the practice of
law. To the contrary, he has unilaterally decided that the
mandatory attendance requirement is too burdensome for
38a
him. As a result, he is unable to satisfy New Jersey’s
skills and methods course requirement, rendering him
ineligible to practice there. Clearly, then, Tolchin’s
inability to practice law is due to his own actions and not
to any constitutional due process violation.
IV.
In conclusion, Tolchin has not raised an issue of
fact sufficient to precluded the entry of summary
judgment in favor of the Appellees. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
While it may be true, as Tolchin argues, that the
bona fide office requirement may include an element of
economic protectionism, such is not fatal to a state statute
or regulation. See Piper, 470 U.S. 274, 285 n.18 (1985).
Tolchin may also be right in noting the
peculiarities present in this case: these rules were
promulgated by members of the New Jersey bar to
regulate members of the New Jersey bar. To be sure,
there are few checks and balances — aside from seeking
redress in the federal courts — to ensure that such rules
are not designed primarily for the benefit of the New
Jersey bar. However, we are satisfied that the
requirements at issue in this case withstand Tolchin’s
challenge. We continue to believe that states should have
latitude “in regulating the practicing of law and admission
to the bar.” Schumacher v. Nix, 965 F.2d 1262, 1269 (3d
Cir. 1992).
39a
We recognize that one could argue that some of the
recent rapid advances in communication and
transportation technology may render the bona fide office
requirement’s intended benefit of attorney accessibility
less significant in the future. See Piper, 470 U.S. at 287
n.21 (“Conference calls are being used increasingly as an
expeditious means of dispatching pretrial matters.”);
Frazier, 482 U.S. at 649 (“[MJodern communication
systems, including conference telephone arrangements,
make it posgible to minimize the problem of
unavailability.”).\Notwithstanding this concern, and for
the reasons mentioned above, we will affirm the district
court’s grant of summary judgment to the defendants.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
Order of District Judge William G.
Bassler, United States District Gourt for
the District of New Jersey
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT J. TOLCHIN, )
Plaintiff, ) Civ. No. 94-4860 (WGB)
Vv. )
THE SUPREME COURT OF THE) ORDER
STATE OF NEW JERSEY, et. al. )
Defendants. )
This matter having come before the Court on the
defendants’ motion for summary judgment; and
The Court having referred the matter to the
Honorable Dennis M. Cavanaugh, U.S.MJ., for a Report
and Recommendation pursuant to 28 US.C. §
636(b)(1)(B) & (C), Fed. R. Civ. P. 72, and Local Rule
40A.2; and
Plaintiff Robert J. Tolchin having filed objections to
the Report and Recommendation under Fed. R. Civ. P.
72(b) and Local Rule 40D.5; and
4la
The Court having conducted a de novo review; and
The Court having considered the written
submissions of the parties; and
The Court having found the objections to be
without merit; and
For good cause shown;
It is on this 14th day of December, 1995 ORDERED
that the Report and Recommendation of United States
Magistrate Judge Dennis M. Cavanaugh, filed on August
29, 1995 , is hereby ADOPTED as the findings of fact and
conclusions of law of this Court; and
It is FURTHER ORDERED that defendants’ motion
for summary judgment is GRANTED; and
It is FURTHER ORDERED that the Complaint is
DISMISSED.
[S/
WILLIAM G. BASSLER, U.S.D,J.
42a
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT J. TOLCHIN,
Plaintiff,
v.
THE SUPREME COURT OF THE
STATE OF NEW JERSEY, et. al.,
Defendants.
)
)
)
)
)
)
Hon. William G. Bassler
Civ. No. 94-4860 (WGB)
REPORT &
RECOMMENDATION
—
DENNIS M. CAVANAUGH, U.S. Magistrate Judge:
This matter comes before the Court upon motions
by Defendants for summary judgment, pursuant to
Fed.R.Civ.P. 56. These motions were referred to the
undersigned for the within Report and Recommendation
by the Honorable William G. Bassler, pursuant to 28
U.S.C § 636(b)(1)(B) and (C), Fed.R.Civ.P. 72, and New
Jersey Local Rule 40A.2. Oral argument was heard on June
43a
12, 1995. For the reasons discussed below, the Court
recommends that Defendants’ motions for summary
judgment be granted and Plaintiffs complaint be
dismissed.
BACKGROUND
Plaintiff, Robert J. Tolchin (“Tolchin”), is a resident
of Scarsdale, New York. Tolchin graduated from Cardozo
Law School in 1992. He sat for and passed the New Jersey
Bar Exam in July, 1992, and was sworn in to the New
Jersey Bar in December 1992.
As a newly admitted attorney, Tolchin was
required to complete a skills and methods course on New
Jersey practice, approved by the New Jersey Supreme
Court as a condition to maintaining his New Jersey
license. N.J.Ct.R. 1:21-l(a); NJ.CtR. 1:26. The skills and
methods course is intended to prepare attorneys for the
transition from either law school to legal practice in New
Jersey, or from legal practice in another state to legal
practice in New Jersey. See ICLE Rule 12G Statement,
411. The skills and methods course is also intended to
familiarize and teach attorneys local nuances of practice
and procedure in New Jersey. Id. The New Jersey
Institute for Continuing Legal Education (“ICLE”)
administers the skills and methods course on behalf of the
New Jersey Supreme Court. Affidavit of Stephen W.
Townsend, 15 (“Townsend Aff.”); see also Affidavit of
Joseph J. Hogya, 17 (“Hogya Aff.”). ICLE is the only
organization which has ever administered the skills and
methods course. Jd.
Beginning January 1, 1987, the New Jersey
Supreme Court directed ICLE to enforce a mandatory
attendance policy for all registrants of the skills and
methods course, irrespective of residence. Hogya Aff. 94
3-4. The mandatory attendance policy was imposed at the
direction and approval of the Supreme Court of New
Jersey upon the recommendations of the Supreme Court's
Advisory Committee on Bar Admissions and proposals
of an ad hoc working group. Townsend Aff. 94 3-4.
Among others, the Advisory Committee on Admissions
was comprised of the entire membership of the Board of
Bar Examiners. See N.J.CtR. 1:27A-2. The mandatory
_attendance policy was implemented after public notice of
the proposed amendment. Townsend Aff. 7 4.
Presently, ICLE offers the skills and methods
course in four cycles throughout the year in three different
scheduling formats. Newly admitted attorneys are free to
choose the course cycle and format which is most
convenient for them. Regardless of which cycle or format a
newly admitted attorney chooses, attendance is
mandatory.
In the case at bar, Plaintiff corresponded with ICLE
and inquired as to whether he could satisfy the New
Jersey continuing education requirements through
equivalent courses offered in New York or through home
study materials. Affidavit of Robert J. Tolchin, Esq., 110
(“Tolchin Aff.”); Hogya Aff.,46. Plaintiff was advised that
45a
in order to satisfy the New Jersey continuing education
requirements he must physically attend the courses in
New Jersey. Id.
Plaintiff initiated the present action to challenge the
constitutionality of the mandatory attendance
requirement. Tolchin alleges that the mandatory
attendance requirement violates the Privilege [sic] and
Immunities Clause of Article IV § 2, the Equal Protection
and Due Process Clauses of the Fourteenth Amendment,
the Commerce Clause and the right to interstate travel.
Complaint, 41 59-64. Additionally, Plaintiff claims that the
bona fide office requirement under NJ.Ct.R. 1:21-1(a)
violates the Privileges and Immunities Clause of Article IV
§ 2, the Equal Protection and Due Process Clauses of the
Fourteenth Amendment, the Commerce Clause, the First
Amendment and the right to interstate travel. Complaint,
1 78-84.
Presently before the Court are Defendants’ [sic]
motions for summary judgment. Defendants contend that
Plaintiff's complaint fails to state a claim upon which relief
can be granted because neither the mandatory attendance
requirement nor the bona fide office requirement violate
any provisions of the United States Constitution. The
* Motions for summary judgment were filed separately on
behalf of Defendants ICLE and Joseph J. Hogya, Esq. (hereinafter
“ICLE"), and Defendants Supreme Court of New Jersey, Robert
Wilentz, Stephen W. Townsend, New Jersey State Board of Bar
Examiners and Samuel j. Uberman (hereinafter “New Jersey”).
Except as otherwise indicated, the Defendants will be referred to
collectively as “Defendants”.
46a
a
mandatory attendance requirement does not violate the
Privileges and Immunities Clause because it applies
equally to both in-state and out-of-state residents.
Defendants argue the Due Process Clause is not
violated by the mandatory attendance requirement
because sufficient standards have been established to
avoid arbitrary administration of the skills and methods
course. Specifically, Defendants claim the Advisory
Committee on Bar Admissions, on which the Board of Bar
Examiners sat, made specific recommendations
concerning the curriculum for the skills and methods
course. These recommendations were ultimately adopted
by the Supreme Court of New Jersey and implemented by
ICLE.
Defendants also take the position that Plaintiffs
Equal Protection claim is meritless because the mandatory
attendance requirement is rationally related to New
Jersey’s legitimate interest of preparing young attorneys
for the rigors of legal practice. Moreover, Defendants
contend that Plaintiffs clain~ that the mandatory
attendance requirement violate: the Commerce Clause is
meritless because the requirement does not discriminate
against interstate commerce. Similarly, Defendants insist
that Plaintiff's right to travel clam is meritless because the
mandatory attendance requirenent actually encourages
and promotes interstate travel.
Defendants also contend that the bona fide office
requirement is constitutional inthat it does not violate the
Privileges and Immunities Clause because the
47a
requirement applies to both resident and non-resident
attorneys. Furthermore, Defendants claim that the bona
fide office requiremeni does not violate the Due Process or
Equal Protection Clauses because the requirement is
rationally related to New Jersey's interest in insuring that
non-resident attorneys are available to local courts,
practitioners and clients and promotes familiarity with
local practice and procedure. Defendants do not address
Plaintiffs Commerce Clause, First Amendment or right to
travel claims.
Plaintiff opposes some, but not all, of the
arguments raised by Defendants’ summary judgment
motion. Plaintiff counters Defendants’ arguments
concerning his Privileges and Immunities claim by
asserting that the mandatory attendance policy and bona
fide office requirement, while not discriminating against
out-of-state attorneys per se, places an undue burden on
the right of out-of-state residents to practice law in New
Jersey. Plaintiff claims that the mandatory attendance
policy and the bona fide office requirements are
protectionist measures by the New Jersey Bar to prevent
New York and Philadelphia lawyers from practicing law in
New Jersey. Transcript from oral argument, June 12,
1995, 13:23-14:6 (“Tr.”). As such, Plaintiff claims that
“New Jersey is the last bastion of protectionism against
out-of-state lawyers”. Tr. 13:22-13:23. Plaintiff also claims
that the mandatory attendance policy is arbitrary and
capricious and violates Due Process because no format or
curriculum has been promulgated, contrary to N.J. Court
Rule 1:26. Plaintiff fails to oppose Defendants’ motion for
48a
ik meres eeseiiietccmsiiiacautuiutaaiiiaaiuaailill
summary judgment on the remaining constitutional
claims.
DISCUSSION
1. Standard for Summary Judgment?
Summary judgment may be granted only if all
probative materials of record, viewed with all inferences in
favor of the non-moving party, demonstrate that there is
no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986);
Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). An
issue is “genuine” if a reasonable jury could possibly hold
in the non-movant’s favor with regard to that issue. See
Anderson _v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). A fact is “material” if it influences the outcome
under the applicable law. Id. at 248.
The moving party bears the initial burden of
demonstrating either (1) that there is no genuine issue of
fact and that as a matter of law, the moving party must
prevail, or (2) that the non-moving party has not shown
facts relating to an essential element of the issue for which
it bears the burden. Celotex at 331. Once either showing is
* Essentially, Defendants [sic] motions seek judgment on the
Pleadings pursuant to Fed.RCiv.P. 12(c). However, since the
Defendants have relied on submissions outside the pleadings in
support of their motions, Defendants’ motions will be treated as
motions for summary judgment pursuant to Fed.R.Civ P. 56(c).
made, the burden shifts to the non-moving party, who
must demonstrate facts which support each element for
which it bears the burden and establish the existence of
genuine issues of material fact. Id. at 333, n.3. To satisfy
this burden, the non-moving party “may not rest upon
the mere allegations or denials” of its pleading.
Fed.R.Civ.P. 56(e). Rather, it must produce sufficient
evidence to support a jury verdict in its favor, see
Anderson at 249, and not just create “some metaphysical
doubt as to material facts.” Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The burden of persuasion, however, always
remains with the moving party. If there is any reasonable
doubt as to the necessity of a trial, summary judgment
should not be granted. Celotex at 331; see also Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157-61 (1970).
Il. Mandatory Attendance at Skills and Methods Course
NJ.Ct.R. 1:21-1(a), in pertinent part, provides:
Except as provided below, no person shall
practice law in [the State of New Jersey] unless
that person is an attorney holding a plenary
license to practice in this state, has complied
with the R. 1:26 skills and methods course in
effect on the date of the attorneys admission, is
in good standing, and maintains a bona fide
office for the practice of law in this state
regardless of where the attorney is domiciled.
NJ.Ct.R. 1:26, in pertinent part, provides:
50a
ee
All newly admitted attorneys shall successfully
complete a skills and methods course that has
been approved by the Supreme Court. The
course format shall be set forth in the rules of
the Board of Bar Examiners. .. . Pursuant to R.
1:21-l(a), failure to complete the course
successfully shall render an attorney ineligible
to practice law.
In a report issued May 31, 1984, the New Jersey
Supreme Court's Advisory Committee on Bar
Admission’ made a recommendation to the Supreme
Court that attendance at the skills and methods course be
mandatory. Townsend Aff. J 3. The Advisory Committee
also made certain recommendations concerning the
curriculum of the skills and methods course. See 113
N.J.LJ. 678-679. The Supreme Court referred the
Committee’s recommendations to an ad hoc working
group to develop proposals to restructure the skills and
methods course accordingly. Townsend Aff. 74. On
January 30, 1986, proposals were published by the
Supreme Court for public comment in the New Jersey
Law Journal. Id. Following a period of public comment,
the Supreme Court adopted, and ICLE implemented, the
Proposals developed by the ad hoc working group, upon
the recommendations of the advisory committee. Id. at
15. Since their implementation, ICLE has enforced the
Proposals developed by the ad hoc working group,
including the mandatory attendance policy. Hogya Aff. q 4.
> Each member of the Board of Bar Examiners sat on the
Advisory Committee.
5la
Currently, the skills and methods course is offered
by ICLE four times per year, in three different scheduling
formats, in locations throughout the State. While
registrants are free to choose the time and format which is
most convenient for them, registrants are required to
physically attend all lectures.* Id. at 7 5.
\ Priv 1 ties CI
Plaintiffs complaint alleges that the mandatory
attendance policy violates the Privileges and Immunities
Clause of the United States Constitution. Defendants claim
that the mandatory attendance requirement is
constitutional due to the fact that it applies equally to
resident and non-resident attorneys.
Article IV, § 2, of the Constitution provides
“[c]itizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States”. The
Privileges and. Immunities Clause was intended to “fuse
into one Nation a collection of independent sovereign
States”. Supreme Court of New Hampshire v. Piper, +70
U.S. 274, 279 (1985) (quoting Toomer v. Witsell, 334 U.S.
385, 395 (1948). Thus, the Privileges and Immunities
Clause applies “[o]nly with respect to those ‘privileges’
and ‘immunities’ bearing on the vitality of the nation as a
* Registrants may request an exemption from an individual
lecture. If granted, the registrant is required to make up the lecture in
one form or another. A complete waiver as to all lectures has never
been allowed.
52a
single entity”. Piper, +70 U.S. at 279 (quoting Baldwin v.
Montana Fish _& Game Comm’n, 436 US. 371, 383,
(1978).
The practice of law has consistently been
considered a “privilege” under Art. IV, § 2. Barnard v.
Thorstenn, 489 U.S. 546, 553, (1989): Supreme Court of
Virginia v. Friedman, 487 U.S. 59, 65, (1988): Piper, +70
U.S. at 279-283. This is so because the legal profession
not only plays a vital role in the national economy, but
also facilitates the vindication of important federal rights.
See Piper, 470 US. at 281. Thus, states may not
discriminate against non-resident attorneys right to
practice law.
In Piper, the Supreme Court struck down a New
Hampshire residency requirement which limited state bar
admission to New Hampshire residents. Piper, 470 U.S.
at 274. The Piper Court determined that the residency
requirement deprived non-residents of a protected
privilege. Id. at 284. The Piper Court also determined that
the discrimination against non-residents was not
substantially justified since less restrictive alternatives,
including mandatory attendance at seminars on state
practice, supported the State’s interest in insuring that
admitted attorneys were familiar with local rules and
procedure. Id. at 284-286.
Similarly, in Friedman, the Supreme Court struck
down a rule which allowed attorneys who were licensed
in another state, and had become permanent residents of
Virginia, admission to the Virginia bar simply on motion.
53a
Friedman, 487 U.S. at 62. Non-residents of Virginia
admitted to practice in another state, however, were
required to take the Virginia bar exam. The Supreme
Court determined that Virginia’s discretionary admissions
policy violated the Privileges and Immunities Clause by
denying non-resident attorneys the opportunity to
practice law in Virginia on terms substantially equal to
those of resident attorneys. Id. at 70.
More recently, in Barnard, the Supreme Court
struck down a residency requirement incorporated into a
local District Court Rule which provided that before an
otherwise qualified attorney could be admitted to the
Virgin Islands Bar he/she must establish he/she “resided
in the Virgin Islands for at least one year immediately
preceding his[/her] proposed admission” and that “[ilf
admitted to practice, he[/she] intends to continue to reside
in and to practice law in the Virgin Islands”. Barnard, 489
U.S. at 552-559. The Supreme Court held that the
residency requirement violated the Privileges and
Immunities Clause by excluding non-residents from the
Virgin Isands Bar. Id. Moreover, the Court determined
that the residency requirement did not bear a substantial
relation to the Virgin Islands District Court's objectives of,
among ther things, insuring the availability of non-
resident attorneys and maintaining an adequate level of
competence in local law. Id.
In the present case, neither Piper, Freidman nor
Barnard is applicable. Here, the mandatory attendance
requirement applies equally to in-state and out-of-state
residents because both resident and non-resident
attorneys are required to physically attend the skills and
methods class. Thus, the Privileges and Immunities
Clause is not implicated since in-state and out-of-state
attorneys are given the opportunity to practice law in
New Jersey on identical terms. See Friedman, 487 U.S. at
67; Schumacher v. Nix, 965 F.2d 1262, 1265, n. 4 (3d Cir.
1992), cert. denied, __ U.S.__, 113 S.Ct. 1252 (1993).
Nevertheless, Plaintiff asserts that the mandatory
attendance policy is discriminatory because it is a
calculated measure to preserve the legal market for local
attorneys. Tr. 13:22-14:6. Plaintiff also claims that the
mandatory attendance policy unduly burdens out-of-state
attorneys who are expected to work long hours and are
not able to travel to New Jersey to physically attend the
skills and methods class. See Tolchin brief in opposition
to summary judgment, 41. 16-17; Tolchin Aff. 7 8.
Plaintiffs arguments fail to establish a violation of
the Privileges and Immunities Clause. Plaintiff evidently
believes that because it is inconvenient for him to
physically attend the skills and methods course in New
Jersey, the mandatory attendance policy is
unconstitutional. Plaintiff misconstrues the scope of the
Privileges and Immunities Clause.
The purpose of the Privileges and Immunities
Clause is “toinsure to a citizen of State A who ventures
into State B the same privileges that which the citizens of
State B enjoy”. Lutz v. City of York, Pa., 899 F.2d 255, 262
(3d Cir. 1990)(quoting Toomer, 334 U.S. at 395). States
35a
are under no_ obligation to make affirmative
accommodations to out-of-state residents who find a
particular requirement personally burdensome. In this
case, Plaintiff claims that it is inconvenient to physically
attend lectures in New Jersey. Plaintiff also submits the
affidavit of an attorney who resides in New York, but
practices in Newark, New Jersey, who claims to find it
unreasonably dangerous utilizing public transportation to
physically attend the skills and methods course in New
Jersey. Affidavit of Amy B. Wagner, 14; Tr. 36:20-36:25.
Plaintiff states that his colleague should not have to “put
her life on the line . . . in order to become a member of the
Bar in New Jersey”. Tr. 36:25-37-2.
Despite Plaintiffs concerns, he and other non-
resident attorneys face no greater burden or any more or
less inconvenience to attend the skills and methods class
in New Jersey than do resident attorneys. Arguably, it is
just as inconvenient for an attorney residing in Cape May
or High Point New Jersey to travel to the closest lecture
site as it is for Plaintiff, or his colleague, to travel to and
from New York to the nearest or closest available lecture
site in New Jersey. It is for that very reason that ICLE
offers the skills and methods class four times a year, in
three different scheduling formats, in locations throughout
the state. In light of the above, the Court finds that the
mandatory attendance policy does not violate the
Privileges and Immunities Clause of Article IV § 2.
B. Due Process
Plaintiffs complaint also alleges that, contrary to
NJ. Court Rule 1:26, Defendants have failed to promulgate
a format or curriculum for the skills and methods course
and that such failure is arbitrary and capricious and
violates Plaintiffs right to due process of law.
In pertinent part, the Fourteenth Amendment
provides that no state shall “deprive any person of life,
liberty or property without due process of law”. To
satisfy the requirements of the Due Process Clause, laws
must provide specific standards which avoid arbitrary
and discriminatory enforcement. Grayned v. Rockford, 408
U.S. 104, 109 (1972).
Plaintiff claims that the failure of the Board of Bar
Examiners to promulgate rules concerning the format of
the skills and methods course renders the mandatory
attendance requirement arbitrary and capricious. Plaintiff
alleges that Defendants’ failure to promulgate rules
concerning the format of the course has deprived him of
the opportunity of satisfying the ICLE requirements in an
equivalent course in New York or through home studies.
Defendants counter in support of their motion for
summary judgment that specific rules concerning the
format of the skills and methods course have been
promulgated and _ therefore summary judgment is
appropriate. Defendants point to the recommendation
made by the Supreme Court’s Advisory Committee on
Bar Admissions, comprised of all the members of the
Board of Bar Examiners, which recommended, among
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other things, mandatory attendance at the skills and
methods course. Defendants state that the Committee’s
recommendations, which were later approved by the
Supreme Court, provide specific standards which guides
the administration of the skills and methods course.
This Court is satisfied that appropriate guidelines
have been established to avoid arbitrary administration of
the skills and methods course. As early as June 1984, the
Advisory Committee on Bar Admissions, on which all
members of the Board of Bar Examiners sat, made
numerous recommendations concerning the
administration of the skills and methods course. 113
NJ.LJ. at 678-679. In a report published by the New
Jersey Law Journal on June 21, 1984, the Committee
recommended that the skills and methods course be
offered in eight week cycles in the Spring and Fall of each
year. Id. at 678. The Committee also recommended that
the skills and methods course be composed of eight “core”
courses including: Professional Responsibility, Trial
Practice and Procedure, Real Property, Family Law, Wills
and Estates, Probate and Estate Administration, Small
Business Problems and Administrative Law. Id. The
Committee further recommended that each of the eight
“core” courses should consist of two three-hour
mandatory lectures and a mandatory written exercise. Id.
In order to successfully complete the skills and methods
course, the Committee recommended that the course be
completed within two years following admission to the
bar. Id.
Thereafter, in January 1986, an ad hoc working
group consisting of members of the New Jersey State Bar
Association, the Bar Association’s Young Lawyers’
Division, the ICLE Advisory Board, the ICLE professional
staff and individuals from the Advisory Committee on Bar
Admissions published proposals to restructure the skills
and methods course in the New Jersey Law Journal. 117
NJ.LJ. 115. The ad hoc working group essentially adopted
the recommendations of the Advisory Committee on Bar
Admissions with certain modifications.
The group proposed that the skills and methods
course be separated into “core” and “elective”
components. Id. at 131. They suggested that the “core”
program consist of five subjects: Professional
Responsibility, Real Estate, Will Drafting and Probate
Practice, Family Law and either Civil or Criminal Practice.
Id. The working group also proposed that mandatory
attendance and mandatory completion of practice exercises
would be required for successful completion of the skills
and methods course. Id. In order to provide greater
flexibility to participants, the working group suggested
that the “core program” be offered four times per year. Id.
The group also proposed that upon completion of the
“core” program, participants would be required to take the
remaining trial course (Civil or Criminal) and
Administrative Law in year two. Id. Finally, the working
group suggested that in year three Participants would
select two courses among: Small Business Problems,
Bankruptcy, Collection Practice, Municipal Land Use,
Workers’ Compensation or other comparative courses
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offered in the ICLE curriculum. Id.
Following a period of public comment, the
Supreme Court of New Jersey adopted the working
group's proposals for restructuring the skills and
methods course. Townsend Aff. 4% 4-5. ICLE has
administered the skills and methods course in accordance
with the proposals ever since’. Id, at 4 5.
Far from being arbitrary and capricious, the
Supreme Court of New Jersey, with the assistance and
input of others, has painstakingly developed the
curriculum for the skills and methods course. The
curriculum adopted by the Supreme Court clearly
articulates the format for the skills and methods course.
As the report of the Advisory Committee on Bar
Admission and the proposals of the ad hoc working group
> Presently, all candidates who apply to take the New Jersey
Bar Exam receive a booklet from the Clerk of the Supreme Court
titted “ADMISSION TO THE BAR”. The booklet includes, among
other things, a description of the skills and methods course. The
description states “The Skills and Methods Course is designed to
familiarize new members of the New Jersey Bar with some important
procedures and techniques of the day-to-day practice of law in New
Jersey”. The description also states:
The Skills and Methods course is now made up of a five
section “Core Program” to be taken during the year
following the bar examination, a two section program to be
taken during the second year following the bar examination,
and a two-section program to be taken during the third year
following the bar examination.
Each candidate also receives an ICLE course brochure
which describes in detail the curriculum for the skills and methods
course. Thus, each candidate for admission to the New Jersey Bar
receives notice of the curriculum for the skills and methods course
prior to admission to the Bar.
indicate, the curriculum for the skills and methods course
was developed to help young lawyers “bridge the gap”
between law school and the practice of law. The “core”
courses reflect those topics neophyte attorneys are most
likely to encounter in their early years of practice. The
mandatory attendance requirement, in conjunction with
the mandatory practice exercises requirement, promotes
New Jersey's legitimate interest in ensuring that newly
admitted attorneys are familiar with local practice and
procedure.
This Court is more than satisfied that the
curriculum adopted by the New Jersey Supreme Court in
1986, and followed by ICLE ever since. avoids any
possibility of the skills and methods course being
administered in an arbitrary and capricious manner.
Moreover, while the curriculum for the skills and
methods course may not be specifically set forth in the
Rules of the Board of Bar Examiners, it is clear by its
participation with the Advisory Committee on Bar
Admissions that the Board of Bar Examiners was crucial
in adopting the curriculum for the skills and methods
course.
C. Equal Protection
Plaintiff alleges that the mandatory attendance
requirement, as a prerequisite for successful completion of
the skills and methods course, is a violation of the Equal
Protection Clause of the Fourteenth Amendment. Plaintiff
does not oppose Defendants’ motion for summary
6la
judgment on this claim. Therefore, Plaintiffs Equal
Protection claim may be consider abandoned’. [sic]
However, the Court will assume that Plaintiffs Equal
Protection claim has not been abandoned.
The Fourteenth Amendment provides that no
state shall “deny to any person within its jurisdiction the
equal protection of the laws”. The threshold question for
our equal protection analysis is what standard governs
our analysis of the mandatory attendance policy. “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 interest.”
Schumacher, 965 F.2d at 1266 (quoting City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam))
However, where legislation establishes a classification that
implicates fundamental rights or draws upon suspect
distinctions such as race, religion, or alienage, the
legislation must meet strict scrutiny analysis.
® While the burden of proof may lie on the moving party on
a motion for summary judgment, the opposing party
may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise
provided by this rule, must set forth specific facts showing
that there is a genuine issue for trial.
California Natural, Inc. v. Nestle Holdings. Inc., 631 F. Supp. 465,
470 (D.N.J. 1986); Fed. R. Civ. P. 56(e). The Court shall rule “on the
record the parties have actually presented, not one potentially
possible”. California Natural, 631 F. Supp. at 470 (quoting
Madeirense v. Stulman, 147 F.2d 399 (2d Cir. 1945); See Judson v
Peoples Bank & Trust Co. of Westfield, 17 NJ. 67, 75 (1954). “If a
party fails to respond in the required manner, the court may, if
appropriate, enter summary judgment against it.” California
(continued next page)
62a
Schumacher, 965 F.2d at 1266.
Plaintiff claims that the maridatory attendance
policy denies him the “fundamental” right to practice law.
The right to practice law, however, has never been
considered a fundamental right. See Scariano, F.3d at 924:
Verner, 533 F. Supp. at 1116. As such, “[a] state can
require high standards of qualification such as good moral
character or proficiency in the law, before it admits an
applicant to the bar, but any qualification must have a
rational connection with the applicant's fitness or capacity
to practice law. Schware v. Board of Law Examiners of
New Mexico, 353 U.S. 232, 239 (1957). A state may also
set strict requirements for continuing legal practice.
Verner, 533 F. Supp. at 1117. Therefore, Plaintiffs claim
that the mandatory attendance requirement is denying
him the right to practice law is subject to rational basis
review.
“Under a rational basis test, a law is entitled to a
presumption of validity.” Parham 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”. Scariano, 38 F.3d 924 (citing Schumacher, 965
F.2d at 1269.
As stated earlier, the Court does not believe that
the mandatory attendance requirement burdens non-
resident attorneys any more, or any less, than resident
attorneys. This is so because all attorneys admitted to
Natural, 631 F. Supp. at 470.
63a
practice law in New Jersey are required to physically
attend the skills and methods course, regardless of
residence. However, even assuming, the mandatory
attendance requirement had a disproportionate impact on
nonresident attorneys, the Court finds that mandatory
attendance policy is rationally related to a legitimate
government interest. Indeed, the skills and methods
course was developed to assist young attorneys make the
transition from law school to the practice of law. The
course is geared to emphasize those topics young
attorneys are likely to face in their early years of practice.
The mandatory attendance requirement simply furthers
the benefits and assures compliance with the skills and
methods requirement by demanding physical attendance.
Thus, while Plaintiff may believe that the mandatory
attendance policy places an undue burden on out-of-state
attorney's ability to practice law in New Jersey, and less
restrictive alternatives are available, the Court finds that
the mandatory attendance policy reasonably promotes
New Jersey's interests in insuring a minimum
competency level for newly admitted attorneys.
D. Commerce Clause
Plaintiff's complaint also alleges that -he mandatory
attendance policy unduly burdens interstate commerce.
While Plainuff does not oppose Defendants’ motion for
summary judgment on this claim, the Court will assume
that Plaintiffs Commerce Clause claim is not abandoned.
—
Article I § 8 of the Constitution provides
“Congress shall have Power... To regulate commerce .. .
among the several States.” Generally, two tests are applied
in constitutional challenges under the Commerce Clause.
First, if legislation is facially neutral, and only has an
incidental effect on commerce, the legislation will be
upheld unless the burden on commerce is “clearly
excessive in relation to the putative local benefits”. Pike v.
Bruce Church, _Inc., 397 US. 137, 142 (1970).
Alternatively, if legislation is discriminatory, the
legislation will be invalidated unless justified by reasons
unrelated to economic protectionism. Brown-Forman
Distillers Corp. v. New York Liquor Authority, 476 U.S.
573, 579 (1986); Government Suppliers Consolidating
Services, Inc. v. Bayh, 975 F.2d 1267, 1277 (7th Cir. 1992),
cert. denied, __- U.S.__, 113 S.Ct. 977 (1993).
In the present case, since the mandatory
attendance policy applies equally to resident and non-
resident attorneys, the Court will apply the Pike test. See
Lutz v. City of York, Pa., 899 F.2d 255, 265 (3d Cir. 1990).
Therefore, the mandatory attendance policy will be upheld
unless its burden on interstate commerce outweighs its
local benefits.
The Court is satisfied that the benefits of the
mandatory attendance policy clearly outweigh the burden,
if any, on interstate commerce. The skills and methods
course serves a legitimate educational purpose. The
course prepares young attorneys for the rigors of legal
practice in New Jersey. The course also serves the
65a
important function of protecting the public fren
untrained attorneys. Mandatory attendance simply
advances the benefits and assures compliance with the
skills and methods course requirement.
Further, the Court finds it difficult to imagine that
an out-of-state attorney would forego admission to the
New Jersey bar simply because he\she [sic] were
required to physically attend the skills and methods
course. Thus, the Court questions whether the
mandatory attendance policy actually burdens interstate
commerce. Accordingly, the Court finds the mandatory
attendance policy for the skills and methods course does
not violate the Commerce Clause.
E. Right to Interstate Travel
Plaintiffs complaint alleges that the mandatory
attendance requirement unduly and illegally restricts his
right to travel. While Plaintiff does not oppose Defendants’
motion for summary judgment on this claim, the Court
will assume that Plaintiffs right to travel claim is not
abandoned.
“[F]reedom to travel throughout the United States
has long been recognized as a basic right under the
Constitution.” Schumacher, 965 F.2d at 1266 (quoting
United States _v. Guest, 383 U.S. 745, 758 (1966)).
However, “(t]he practice of law [] is not a fundamental
right or activity”. Scariano, 852 F. Supp. at 715 (citing
Leis, 439 U.S. at 444). Thus, “[t]he Constitution does not
66a
guarantee that Citizens of State A may move to State B and
enjoy the same privileges they did as Citizens of State A,
only that citizens of State A may move to State B and be
treated on similar terms as the citizens of State B.”
Schumacher, 965 F.2d at 1267. Nor does the right to travel
“require that because a lawyer has been admitted to the
bar of one State, he or she must be allowed to practice in
another”. Schumacher, 965 F.2d at 1268 (quoting Leis, 439
U.S. at 443).
A state law implicates the right to travel when it
actually deters such travel, when impeding travel is the
laws primary objective or when the law. uses
classifications which serve to penalize the exercise of the
right to travel. Attorney General of New York v. Soto-
Lopez, +76 U.S. 898, 903 (1986). Here, Plaintiff claims that
the mandatory attendance policy unduly restricts his
right to travel and practice law. However, the Court
cannot fathom how a requirement which is applicable to
in-state and out-of-state residents alike, burdens Plaintiffs
right to travel or practice law. See Lair v. Goldenhersh,
716 F.2d 401, 412 (7th Cir. 1983) (“[r]equiring [Plaintiff]
to sit for and pass the bar examination does not amount to
a denial of a basic necessity of life. . . nor does it infringe
on a fundamental right.”). This is especially true in light of
the great deference granted to states in regulating the
practice of law. See Schware, 353 U.S. at 239. Moreover,
since the mandatory attendance policy applies to in-state
and out-of-state residents alike, the policies primary
objective is not impeding travel. Nor does the mandatory
attendance policy use any classifications which penalize
67a
the exercise of the right to travel or practice law.
In light of the above, the Court finds that Plaintiff
has failed to demonstrate that requiring mandatory
attendance at the skills and methods course is
unconstitutional. First, the mandatory attendance
requirement does not discriminate against out-of-state
attorneys because the requirement applies equally to
resident and non-resident’ attorneys. Moreover,
mandatory attendance furthers the benefits and assures
compliance with the skills and methods requirement.
Accordingly, the Court recommends that Defendants’
motions for summary judgment be granted and Plaintiff's
claims concerning the mandatory attendance policy be
dismissed.
IL. Bona Fide Office Reaui :
. Privi " ties C1
Plaintiffs complaint alleges that the bona fide office
requirement, incorporated in N.J. Court Rule 1:21-1(a)®,
violates the Privileges and Immunities clause because the
requirement places an undue burden on out-of-state
attorneys. The Supreme Court of New Jersey seeks to
” Plaintiffs complaint alleges that the bona fide office
requirement violates numerous constitutional provisions. Plaintiff
seeks to hold all Defendants liable for these alleged constitutional
violations. However, Plaintiff's complaint is devoid of any basis for
holding any Defendants, except the New Jersey Supreme Court, liable
for these alleged constitutional violations. Indeed, Art. 6, § 2, 43
reads “The Supreme Court shall make rules governing the
administration of all courts in the state and, subject to the law, the
practice and procedure in all such courts. The Supreme Court shall
have jurisdiction over the admission to the practice of law and the
discipline of persons admitted”. See State v. Bander, [106] N,J. Super.
196, 200 (Monmouth County Ct.), rev'd. on other grounds, 56 NJ.
1986 (1969) (“It is now well settled in our State that the Supreme
Court has exclusive jurisdiction over the practice of law.”).
Thus, the Supreme Court of New Jersey is vested with the
exclusive authority over the practice of law. Plaintiffs complaint and
brief in opposition to the present motion for summary judgment fail
to allege that any Defendant, other than the Supreme Court of New
Jersey, was responsible for the promulgation and enforcement of R
1:21-1(a). Accordingly, except for the Supreme Court of New Jersey,
the Court recommends that Defendants’ motion for summary
judgment dismissing Plaintiff's claims related to the bona fide office
requirement be granted.
* Rule 1:21-1(a), in relevant part, provides:
[A] bona fide office is a place where the attorney or a
responsible person acting on the attorney's behalf can
be reached in person and by telephone during normal
business hours. A bona fide office is more than a mail
drop, a summer home that is unattended during a
substantial portion of the year, or an answering service
unrelated to a place where business is conducted.
69a
dismiss Plaintiffs Privileges and Immunities claim on the
basis that the bona fide office requirement does not violate
the Privileges and Immunities Clause because it applies
equally to resident and non-resident attorneys. See
Schumacher, 965 F.2d at 1265, n.4.
Significantly, Plaintiff relies on Frazier v. Heebe, 482
U.S. 641 (1987)° in opposition to the Supreme Court of
New Jersey’s motion for summary judgment. In Erazier,
the Supreme Court struck down a local District Court
Rule which required out-of-state attorneys to maintain an
in-state office. Id. The Frazier Court found the in-state
office requirement unnecessary and irrational because it
did not apply to in-state attorneys. Id. at 649. The Frazier
Court noted that a resident attorney could maintain his
only office out-of-state and still be admitted to practice in
the local District Court. Id. The Court found the
distinction irrational and unnecessary because a resident
attorney with his/her only office out-of-state was no more
available to the Louisiana Court, or no more
knowledgeable in Louisiana law, than a non-resident
attorney with an office out-of-state. Id.
The Frazier case is readily distinguishable from the
case at bar. The bona-fide office requirement here is
neither unnecessary nor irrational because it applies to in-
state and out-of-state residents alike and provides New
° In Frazier, the Court did not reach the constitutional issues
raised by Plaintiff because the Court invalidated the residency and
in-state office requirement pursuant to its supervisory authority over
the District Courts.
70a
Jersey with a reasonable avenue through which the State
can protect its interest in insuring that attorneys licensed
in New Jersey are available to New Jersey Courts,
practitioners and clients and familiar with local practice
and procedure. See Friedman, 487 U.S. at 69-70 (following
the Frazier decision, the Supreme Court recognized that an
in-state office requirement was an appropriate and less
restrictive means of enforcing Virginia’s full-time practice
restriction); see e.g. R. 1:21-1(a).
Plaintiffs case is a perfect illustration of how the
bona fide office requirement promotes New Jersey’s
interests. At oral argument, Plaintiff indicated that he was
considering accepting employment at a law firm in either
Mexico or the Netherlands. Tr. 9:10-9:18. Plaintiff indicated
that he may prefer to represent the interest of his Dutch
or Mexican clients in New Jersey. Id. It is easy to envision
the difficulty an adversary or the Court may have in
communicating and scheduling conferences with Plaintiff
if he did not have a bona fide office in New Jersey. While
Plaintiffs example may be extreme, it illustrates the
potential difficulties New Jersey Courts and New Jersey
practitioners could experience absent the bona fide office
requirement.
Moreover, the bona fide office requirement does not
violate the Privileges and Immunities Clause because the
requirement applies equally to resident and non resident
attorneys”. As such, resident and non-resident attorneys
‘© At oral argument, Plaintiff attempted to persuade the
(continued next page)
7la
have the opportunity to practice law in New Jersey on
exactly the same terms. See Friedman, 487 U.S. at 67;
Schumacher v. Nix, 965 F.2d at 1265, n.4.
B. Due Process
Plaintiffs complaint also alleges that the bona fide
office requirement deprives him of property without due
process of law. The Supreme Court of New Jersey asserts
generally in its motion for summary judgment that the
bona fide office requirement does not violate Due Process.
While Plaintiff does not oppose the Supreme Court's
motion for summary judgment on this claim, the Court
will assume that Plaintiffs due process claim is not
abandoned.
“A person's ‘right’ or ‘privilege’ in the practice of
law []has never been among those held to be
‘fundamental’ so only minimal scrutiny under the rational
basis test is required to evaluate claims of deprivations of
such a ‘right’ without due process.” Verner, 533 F. Supp.
at 1116; see also Scariano, 38 F.3d at 924. Under rational
Court that it is more convenient and more economical for resident
attorneys to maintain an office in New Jersey since resident attorneys
can use their homes as a bona fide office. Plaintiff obviously
misconstrues the bona fide office requirement and the Court
therefore finds Plaintiff's argument unpersuasive.
As NJ.CtR. 1:21-l(a) indicates, a bona fide office is more
than a mere address. It is a functioning office where an attorney or a
representative can be reached during regular business hours.
Regardless of residence, an attorney must go to some expense in order
to comply with the bona fide office requirement. Moreover, in the
Court's experience, most attorneys do not practice out of their homes.
72a
basis review, “[a] court will not disturb the law as long as
it is rationally related to a legitimate government interest”.
Scariano, 38 F.3d at 924.
Generally, states have “broad power to establish
standards for licensing practitioners and regulating the
practice of professions,” Goldfarb, 421 U.S. at 792, so long
as the regulations “have a rational connection with the
applicant's fitness or Capacity to practice law”. Schware.
353 U.S. at 239. As has been discussed, the New Jersey
bona fide office requirement was adopted to insure that
attorneys admitted to practice law in the State of New
Jersey are available to New Jersey Courts, practitioners
and clients and familiar with local practice and procedure.
The Court finds that the bona fide office requirement has a
rational connection with an attorneys capacity to practice
law.
As Plaintiffs case illustrates, it is not difficult to
envision the trouble an adversary or the Court would
have in communicating and scheduling conferences with
an attorney, such as Plaintiff, who resided in Mexico or the
Netherlands, and who represented a client in New Jersey.
Absent a bona fide office, Plaintiff would be virtually
unreachable considering the differences in time zones and
the exorbitant costs of communicating with Mexico or the
Netherlands. Moreover, the Court questions whether
Plaintiff could remain competent in local practice and
procedure if he was employed and residing in either
Mexico or the Netherlands. Accordingly, the Court finds
that the bona fide office requirement is rationally connected
73a
to an attorneys [sic] capacity to practice law.
C. Equal Protection
Plaintiff claims that the bona fide office requirement
deprives him of equal protection of the law, in violation of
the Fourteenth Amendment of the United States
Constitution. The Supreme Court of New Jersey denies
this claim. While the Plaintiff failed to oppose the Supreme
Court’s motion for summary judgment on this claim, the
Court will assume that Plaintiffs Equal Protection claim is
not abandoned.
As stated earlier, Plaintiffs Equal Protection claims
are subject to rational basis review. See supra. pp. 16-19.
As such, “[a] court will not disturb the law as long as it is
rationally related to a legitimate government interest”.
Scariano, 38 F.3d at 924 (citing Schumacher 965 F.2d at
1269.).
The bona fide office requirement is certainly
rationally related to the state’s interest in insuring that
attorneys admitted to practice law in New Jersey are
available to New Jersey Courts and practitioners and
familiar with local practice and procedure. As has been
discussed, the bona fide office requirement enables local
courts, practitioners and clients to more easily
communicate with non-resident attorneys, whose
practice may be focused out-of-state. While Plaintiff may
find it inconvenient to establish a bona fide office in New
Jersey, Plaintiff must also be cognizant of the interests of
74a
ar
his clients, the Court and other practitioners. The
interests of clients, the Court and the legal community as
a whole must take precedence over the convenience of
individual attorneys. Accordingly, the Court finds that the
bona fide office requirement is a reasonable regulation of
the practice of law.
Plaintiffs complaint also alleges that the bona fide
office requirement violates the Commerce Clause, First
Amendment and the right to interstate travel. The
Supreme Court’s motion for summary judgment fails to
address these remaining claims. Nevertheless, Plaintiff's
remaining claims against the Supreme Court are barred
by sovereign immunity.
The Eleventh Amendment of the United States
Constitution provides:
The Judicial power of the United States shall
not be construed to extend to any suit in law or
equity, commenced or prosecuied against one
of the United States by Citizens of another
State, or by Citizens or Subjects or any Foreign
State.
The Eleventh Amendment also bars actions by private
citizens against state agencies sued as instrumentalities of
the state regardless of the relief sought”. Pennhurst State
' The Court finds that the Supreme Court of New Jersey is
an instrumentality of the state for the purpose of the Eleventh
(continued next page)
75a
School and Hospital _v. Halderman, 465 U.S. 89, 100
(1984).
“It is well settled that, absent a clear waiver by a
state of its sovereign immunity under the Eleventh
Amendment or a congressional abrogation of that
immunity, a federal court lacks jurisdiction to hear claims
brought by an individual against a state”. Jordan v. New
lersey Department of Corrections, 881 F. Supp. 947, 951
(D.NJ. 1995) (citing Pennhurst State School, 465 U.S. at
99). “It is also well settled that Congress did not intend to
abrogate the sovereign immunity of the states under the
Eleventh Amendment when it enacted 42 U.S.C. § 1983.”
Jordan, 881 F. Supp. at 951 (citing Edelman v. Jordan, 415
U.S. 651, 676-77 (1984)). Thus, if the Supreme Court of
New Jersey has not waived its sovereign immunity, this
Court lacks jurisdiction to hear Plaintiffs remaining
claims.
“(T]he state of New Jersey has not waived its
sovereign immunity from suits under 42 U.S.C. § 1983
generally”. Neptune v. Burlington County College, 1993
WL 311960, *3 n.3 (E.D.Pa. 1993). Nor has the Supreme
Court of New Jersey consented to be sued in this matter.
See Id. Accordingly, since the Supreme Court of New
Jersey has not waived its sovereign immunity, Plaintiff's
remaining claims” against the Supreme Court are barred
Amendment. See Johnson v. New Jersey, 869 F. Supp. 289, 296-297
(D.N J. 1994) (“judicial branch is an integral part of the State of New
Jersey” and therefore entitled to share in state's sovereign immunity).
? The Eleventh Amendment bars not only Plaintiff's claims
(continued next page)
76a
ee
by the Eleventh Amendment.
In light of the above, the Court finds that the bona
fide office requirement is constitutional. The bona fide
office requirement applies equally to resident and non-
resident attorneys. Moreover, the bona fide office
requirement promotes New Jersey's legitimate interest in
insuring the availability and competence of attorneys
admitted to practice in the State. Accordingly, the Court
recommends that Defendants’ motion for summary
judgement [sic] be granted and Plaintiffs claims
concerning the bona fide office requirement be dismissed.
CONCLUSION
For the reasons discussed above, it is the
recommendation of the undersigned that Defendants’
motions for summary judgment be granted and Plaintiffs
complaint be dismissed.
Pursuant to Local Rule 40D.5, the parties have ten
(10) days from the receipt of this Report and
Recommendation to file and serve objections thereto.
Dated: [sic] /s/
Dennis M. Cavanaugh, U.S.M_J.
for monetary damages, but Plaintiff's claims for equitable relief as
well. See Cory v. White, 457 U.S. 85, 90-9] (1982) (recognizing that
Eleventh amendment by its very terms applies to equitable claims).
Orig: Clerk
cc: Hon. William G. Bassler
File
Attorneys of record
Pro se Plaintiff
STATUTES INVOLVED
United States Constitution, article I. section 8. clause 3
Congress shall have the power to regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.
(The Statutes section continues on the next page.)
NEW JERSEY RULES OF COURT
PART I. RULES OF GENERAL APPLICATION
CHAPTER III. PRACTICE OF LAW AND ADMISSION
TO PRACTICE
RULE 1:21. PRACTICE OF LAW
N.J. Court Rules, 1969 R. 1:21-1 (1997)
Version currently in effect, reflecting June 28, 1996
amendment which was effective September 1, 1996
(see below for version in effect at time this action was
commenced)
1:21-1. Who May Practice; Appearance in Court
(a) Qualifications. Except as provided below, no person
shall practice law in this State unless that person is an
attorney holding a plenary license to practice in this State,
has complied with the R. 1:26 skills and methods course
requirement in effect on the date of the attorney's
admission, is in good standing, and maintains a bona fide
office for the practice of law in this State regardless of
where the attorney is domiciled. A bona fide office is more
than a maildrop, a summer home that is unattended
during a substantial portion of the year, an answering
service unrelated to a place where business is conducted
or a place where an on-site agent of the attorney receives
and transmits messages only. For the purpose of this
section, a bona fide office is a place where clients are met,
files are kept, the telephone is answered, mail is received
and the attorney or a responsible person acting on the
attorney's behalf can be reached in person and by
80a
telephone during normal business hours to answer
questions posed by the courts, clients or adversaries and
to ensure that competent advice from the attorney can be
obtained within a reasonable period of time. An attorney
who practices law in this State and fails to maintain a bona
fide office in this State shall be deemed to be in violation of
RPC 5.5(a). An attorney who is not domiciled in this
State, but who meets all the qualifications for the practice
of law set forth herein must designate the Clerk of the
Supreme Court as agent upon whom service of process
may be made for all actions, including disciplinary actions,
that may arise out of the practice of law and activities
relat
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