Opposition Brief — Tolchin v. Supreme Court of New Jersey

No. 97-209 eens

In The SEP 3

Supreme Court of the ee -

October Term, 1996

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ROBERT J. TOLCHIN, individually and on behalf of all

others similarly situated,

y. Petitioner,

THE SUPREME COURT OF THE STATE OF NEW JER-

SEY, 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.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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BRIEF IN OPPOSITION

¢

Tompkins, McGuire & WACHENFELD

Four Gateway Center

100 Mulberry Street

Newark, New Jersey 07102

(973) 622-3000

Attorneys for Respondents

New Jersey Institute for

Continuing Legal Education and

Joseph J. Hogya

Witutiam B. McGutre

Counsel of Record

MARIANNE M. DeMarco

On the Brief

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

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTION PRESENTED

Respondents New Jersey Institute for Continuing

Legal Education (“I.C.L.E.”) and Joseph J. Hogya (collec-

tively “the I.C.L.E. respondents”) present the following

counterstatement to the questions presented in the Peti-

tion for a Writ of Certiorari filed by Robert J. Tolchin

(“the petitioner”):!

Whether a rule adopted by respondent New Jersey

Supreme Court and implemented by the I.C.L.E. respon-

dents, which requires that all attorneys newly admitted to

the New Jersey bar attend skills and methods courses

offered at a choice of locations in the State of New Jersey,

is not violative of the Commerce Clause of the United

States Constitution because it:

a. applies to both resident and nonresident

attorneys, all of whom must attend the

required courses;

b. serves legitimate state interests in regulating

the legal profession and in ensuring that

those who will be practicing in the State will

be familiar with its laws and procedures;

and

1 Neither New Jersey Institute for Continuing Legal

Education nor Joseph J. Hogya, its skills and methods course

director, have anything to do with the bona fide office rule

which is the subject of two of the three questions which the

Petition presents to the Court for review. Accordingly, this

counterstatement addresses only the third question presented

by the petitioner which concerns the mandatory attendance rule

for the skills and methods course set forth in N.J.Ct.R. 1:21-1(a).

burdens, only incidentally, those attorneys

who reside a distance from the multiple

locations in New Jersey where the required

courses are offered.

lil

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF <cpannienay PRESEN-

eck eas yk aman tii tn ws oe one 8 a ods

SS 8 ene

CONSTITUTIONAL PROVISION AND STATE

ee ge 8 Fe tS

COUNTERSTATEMENT OF THE CASE ............

REASONS FOR DENYING THE WRIT.............

I. THE PETITION ACKNOWLEDGES THE “WELL-

ESTABLISHED PRECEDENT” OF THE

SUPREME COURT SETTING FORTH THE ELE-

MENTS OF DORMANT COMMERCE CLAUSE

ANALYSIS AND MERELY DISAGREES WITH

HOW THE COURT OF APPEALS CONDUCTED

ES ee eee ee

II. THE SUPREME COURT HAS SUGGESTED

REPEATEDLY THAT THE INTERESTS OF

STATE OR FEDERAL COURT BARS, IN ASSUR-

ING THE COMPETENCE OF THEIR ATTOR-

NEYS, MAY BE ADDRESSED BY REQUIRING

MANDATORY ATTENDANCE AT SEMINARS

ON LEGAL PRACTICE AND PROCEDURE....

Ee. ee

iV

iv

TABLE OF AUTHORITIES

Page

Cases

Brown-Forman Distillers Corp. v. New York State

Liquor Authority, 476 U.S. 573 (1986) ............. 8, 9

CTS Corp. v. Dynamics Corp. of America,

SR EIB GP Pr so nn enc cchedecny sie cae seek sean 10

Frazier v. Heebe, 482 U.S. 641 (1987) .............. 13, 15

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) .... 11

Goldfarb v. Supreme Court of Virginia,

Fee FAG Gr COU Ge TO aw os kgs citi csinccvadis 11

Hughes v. Oklahoma, 441 U.S. 322 (1979).............. y

Leis o. Fiynt, 459 US. 256 (1979) «2 osc cecccccancs. 11

Philadelphia v. New Jersey, 437 U.S. 617 (1978)........ 10

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). .8, 10, 13

Roos w. Bie, 407 US. GOO C7] «ooo sc cies scenes 12

Supreme Court of New Hampshire v. Piper,

Bk eg errr er rrr rr re 13, 14, 5

Supreme Court of Virginia v. Friedman,

ee Sy. er I 6 Siw sc ose dash ns an dose 13, 14, 15

Tolchin v. Supreme Court of New Jersey,

111. F.3d 1099 (3a: Cir. 1997) ..........: ty My. 41, 13

United States v. Johnston, 268 U.S. 220 (1925)....... 9, 12

Western and Southern Life Insurance Co. v. State

Board of Equalization of California, 451 U.S. 648

ji) A eerare se seasesseeanns Orrte ee Jeceetes 8

U.S. CONSTITUTION

ere ls GU. Gi niet da vcancecucsuncovns ys vier ies 1

STaTE Court RULES

aS Sg * 8 aD ROR Stes Bocas NAD 2

I oo. eis han Guuaveana een 1, 2

OR BS i io sae seeccie eee 2

= a

1

CONSTITUTIONAL PROVISION AND STATE

= COURT RULES AT ISSUE

The Petition for a Writ of Certiorari presents the

Court with questions concerning alleged violations of the

Commerce Clause of the United States Constitution as a

result of the application of two rules adopted by the New

Jersey Supreme Court.

U.S. Const. art I, § 8

The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the

several States and with the Indian Tribes... .

N.J.Ct.R. 1:21-1(a)

[N]o person shall practice law in this State

unless that person is an attorney holding a plen-

ary 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 attor-

ney’s admission, is in good standing, and main-

tains a bona fide office for the practice of law in

this State regardless of where the attorney is

domiciled... .

N.J.Ct.R. 1:26

All newly admitted attorneys shall successfully

complete a skills and methods course that has

been approved by the Supreme Court... .

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COUNTERSTATEMENT OF THE CASE

The New Jersey Supreme Court, in N.J.Ct.R. 1:26,

__ Tequires that “[a]ll newly admitted attorneys shall suc-_

cessfully complete a skills and methods course that has

been approved by [it].” This Rule further provides that,

“[p]ursuant to [N.J.Ct.]R. 1:21-1(a),? failure to complete

the course successfully shall render an attorney ineligible

to practice law.” Accordingly, pursuant to these rules, any

attorney who has passed the New Jersey bar examination

since January 1, 1987, and has met the other plenary

admission requirements of N.J.Ct.R. 1:27-1,5 has been eli-

gible for admission to the bar of the State of New Jersey.

All such newly admitted attorneys, however, additionally

have been required to complete the skills and methods

course, referenced by the Supreme Court in N.J.Ct.R. 1:26,

in order to maintain their eligibility to practice law.

The changes to N.J.Ct.R. 1:26, which became effective

on January 1, 1987, were adopted by the New Jersey

Supreme Court based on recommendations made in a

May 31, 1984 report of the Advisory Committee on Bar

Admissions, on which all members of the New Jersey

Board of Bar Examiners sat. This report, published in the

June 21, 1994 edition of the New Jersey Law Journal,4

recommended that attendance at skills and methods

2 The pertinent text of N.J.Ct.R. 1:21-1(a) is set forth, supra,

at page 1.

3 In addition to passage of the New Jersey bar examination,

the plenary admission requirements of N.J.Ct.R. 1:27-1(a)

include: (a) certification of good character by the Committee on

Character; and (b) attainment of a qualifying score on the Multi-

State Professional Responsibility Examination or passage of an

approved course on professional ethics.

* At all relevant times, the New Jersey Law Journal was the

Jersey with respect to practice and procedure.

course lectures be mandatory and indicated that such

attendance was “regarded as a serious matter.”

Following receipt and review of the Advisory Com-

mittee’s written report, the Supreme Court of New Jersey

referred the recommendations to an ad hoc working

group for the development of a concrete proposal for the

restructuring of the skills and methods course which had

been initiated in 1964 in order to address the lack of

uniform quality in the prior pre-admission clerkship sys-

tem. This ad hoc group submitted its proposal to restruc-

ture the skills and methods course, which also included a

mandatory attendance requirement, to the Supreme

Court of New Jersey. This formal “Proposal to Restruc-

ture [the] Skills and Methods Course” was published by

the Supreme Court in the January 30, 1986 issue of the

New Jersey Law Journal.

After a period which allowed for public comment, on

June 17, 1986, the Supreme Court of New Jersey adopted

the ad hoc group’s proposal to restructure the skills and

methods course, including the mandatory attendance

requirement. I.C.L.E. was approved by the New Jersey

Supreme Court to administer the restructured skills and

methods course and was directed to implement the man-

datory attendance policy. Based on the direction of the

New Jersey Supreme Court, and with its approval, the

I.C.L.E. respondents have applied the attendance require-

ment to residents and nonresidents of New Jersey alike.

Relying upon the format for the skills and methods

course which was set forth in the “Proposal to Restruc-

ture” and adopted by the Supreme Court on June 17,

1986, I.C.L.E. prepares a skills and methods course bro-

chure each winter, spring, summer and fall cycle. Bro-

chures for the appropriate cycles are forwarded by

I.C.L.E. to the New Jersey State Board of Bar Examiners

for dissemination to all who apply for admission to the

bar of the State of New Jersey. Petitioner’s Complaint,

which was filed in the United States District Court on

October 12, 1994, appended as its “Exhibit A” the skills

and methods course brochure which he had received for

the Fall 1994 cycle. [IRa-1 to IRa-15].5

As this brochure indicates, the skills and methods

course is a “bridge the gap” program designed to teach

the local nuances of New Jersey practice [I[Ra-11] and to

prepare attorneys for the transition from either law

school to legal practice or legal practice in other states to

practice in New Jersey. [IRa-1; I[Ra-11]. In order to achieve

these objectives, the skills and methods course is divided

into two components. [IRa-1]. The first component

includes core courses in: (1) family law; (2) real estate; (3)

will drafting and probate practice; (4) professional

responsibility; and (5) civil or criminal trial preparation.

[IRa-2]. The second component of the course consists of

two phases of continuing education courses to expand

knowledge of New Jersey practice. [IRa-4 to IRa-5].

The core courses are offered by I.C.L.E.,-four times a

year, in spring, summer, fall and winter cycles at regional

locations throughout the State of New Jersey. [IRa-2;

IRa-4; [Ra-14 to IRa-15]. The cycles are offered on several

5 The abbreviation “IRa” is used to identify the appendix of

the I.C.L.E. respondents attached to this brief.

different schedules, including weekdays, evenings and

Saturdays [IRa-2], with only the summer weekday cycle

being presented on videotape. [IRa-4]. While the Petition

indicates that the skills and methods courses are held

“frequently at remote points within the State” [P-13], the

brochure appended to petitioner’s Complaint in this mat-

ter plainly reveals that two skills and methods course

locations in northern New Jersey, one course location in

central New Jersey and one course location in southern

New Jersey were available to registrants for the core

components offered in the fall of 1994. [[Ra-14 to IRa-15].

These New Jersey course locations in Newark, Whippany,

New Brunswick and Cherry Hill cannot fairly be charac-

terized as “remote.”

Although registrants for core component skills and

methods courses may choose the locations and time

schedules which best suit their needs [IRa-2; IRa-7], they

are required by the New Jersey Supreme Court to attend

all of the courses for which they choose to register.

[IRa-6]. In addition to this mandatory attendance require-

ment, registrants are required to prepare written exercises

with regard to each core course which they attend.

[IRa-3]. Exercises must be completed and submitted to

I.C.L.E., by assigned dates, and passing grades must be

received on all five exercises for the core courses which

were attended. [IRa-3].

After completion of the core courses, registrants

advance to the continuing education component of the

6 Similar choices of north, central and south Jersey

locations always have been offered for all cycles.

skills and methods course. [IRa-4]. This component is

broken down into two phases, comprised of two courses

each. In the first phase, administrative law and either

civil or criminal trial preparation must be taken. [IRa-5].

In the second phase, registrants can choose any two of the

following courses: (1) purchase, organization and sale of

a small business; (2) bankruptcy practice; (3) collection

practice; (4) municipal court practice; (5) workers com-

pensation practice; and (6) landlord/tenant practice.

[IRa-5].

As the brochure appended to petitioner’s Complaint

reveals, lectures in the continuing education component

of the skills and methods course are presented live, twice

each year, in northern, central and southern New Jersey

locations, and also are presented as video replays at

various other times during the year. [IRa-4]. As with the

core courses, registrants may choose the locations and

time schedules which best suit their needs. [IRa-4; I[Ra-6].

All registrants, however, are required by the New Jersey

Supreme Court to attend the courses which they choose

in order to achieve successful completion of the continu-

ing education component of the skills and methods

course. [IRa-6].

Video replays of prior lectures are offered by I.C.L.E.

to accommodate registrants who have chosen, for their

own reasons and convenience, not to attend the live

lectures when they were offered. [IRa-4]. Thus, while

video replays of prior lectures may be part of the skills

and methods course, based on the choices made by par-

ticular registrants, there is no support in the record for

the statements in the Petition that “[o]nly a handful of the

lectures are presented with a live lecturer” and “[t]he vast

majority of the classes are presented on video tape” with-

out most registrants “ever seeing a live lecturer.” [P-13].

These inaccurate representations provide no support for

the petitioner’s cause.

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REASONS FOR DENYING THE WRIT

I.

THE PETITION ACKNOWLEDGES THE “WELL-

ESTABLISHED PRECEDENT” OF THE SUPREME

COURT SETTING FORTH THE ELEMENTS OF DOR-

MANT COMMERCE CLAUSE ANALYSIS AND

MERELY DISAGREES WITH HOW THE COURT OF

APPEALS CONDUCTED THIS ANALYSIS.

In urging that certiorari should be granted, in this

case, the petitioner has not argued that the elements of

the dormant Commerce Clause, which have been enunci-

ated repeatedly by this Court, are unclear or in conflict.”

Instead, the Petition has acknowledged and cited, with

approval, the “well-established precedent” [P-19] upon

which the Third Circuit Court of Appeals relied in ren-

dering its decision below. See Tolchin v. Supreme Court of

New Jersey, 111 F.3d 1099, 1106-07 (3d Cir. 1997) (citing

7 Although the mandatory attendance rule for the skills

and methods course was challenged below on a number of

constitutional grounds, the Petition seeks certiorari solely on

the ground that this state rule should have been found to be

violative of the Commerce Clause. While Question No. 3, as

presented in the Petition, does not identify the Commerce

Clause as the constitutional provision at issue [P-i], the reasons

presented by the petitioner for the granting of the writ address

only this clause. [P-15 to P-25].

Brown-Forman Distillers Corp. v. New York Liquor Authority,

476 U.S. 573, 578-79 (1986); Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970)). [Pa-13 to Pa-15].8

The thrust of the Petition, therefore, is that the Com-

merce Clause analysis, established in the foregoing

Supreme Court cases and their progeny, was conducted

incorrectly by the Court of Appeals. [P-20]. This argu-

ment does not provide a compelling basis for the granting

of certiorari in this case because, in deciding that the

mandatory attendance rule for the skills and methods

course is not unconstitutional, the Third Circuit followed

a long line of dormant Commerce Clause authorities.?

Moreover, the Court of Appeals carefully and correctly

analyzed the petitioner’s constitutional challenge under

existing authority. Tolchin v. Supreme Court of New Jersey,

111 F.3d at 1106-11. [Pa-12 to Pa-26].

In seeking to convince this Court that a writ of cer-

tiorari to the Third Circuit Court of Appeals is warranted

with regard to the mandatory attendance rule for the

skills and methods course, the petitioner has presented

dual arguments that: (1) the challenged rule could not

meet the heightened scrutiny test for dormant Commerce

8 The abbreviation “Pa” is used to identify the appendix

attached to the Petition.

9 The Supreme Court has recognized “that the Commerce

Clause contains an implied limitation on the power of the states

to interfere with or impose burdens on interstate commerce

... ina long line of cases stretching back to the early days of the

Republic.” Western and Southern Life Insurance Co. v. State Board

of Equalization of California, 451 U.S. 648, 652 (1981).

Clause analysis, which the Court of Appeals found inap-

plicable [P-20]; and (2) the more lenient standard, which

the court below determined to be applicable, was not

properly applied. [P-20; P-23 to P-25]. The Petition is

unpersuasive, with regard to the first argument, because

it provides no reason why the mandatory attendance rule

for the skills and methods course, which is drafted in

facially neutral terms and is applied to all attorneys

newly admitted to the New Jersey bar, should be consid-

ered to be a regulation which directly discriminates

against interstate commerce.

The Supreme Court has recognized repeatedly that it

is only state regulations which directly regulate or dis-

criminate against interstate commerce, or favor in-state

economic interests, which are subject to strict or height-

ened scrutiny under the dormant Commerce Clause. See,

e.g., Hughes v. Oklahoma, 441 U.S. 322, 337 (1979); Brown-

Forman Distillers Corp. v. New York State Liquor Authority,

476 U.S. at 579. The Third Circuit Court of Appeals prop-

erly concluded, in its Commerce Clause analysis, that

heightened scrutiny was not applicable with regard to the

mandatory attendance requirement because it: (1) does

not discriminate on its face; (2) applies equally to resi-

dents and nonresidents; and (3) does not effectively favor

resident attorneys. Tolchin v. Supreme Court of New Jersey,

111 F.3d at 1108. [Pa-17]. The Petition, therefore, presents

no compelling reason why certiorari should be granted to

allow the Supreme Court to undertake a heightened scru-

tiny analysis which has not been shown to be warranted

in this case. See, e.g, United States v. Johnston, 268 U.S. 220,

227 (1925) (the Supreme Court generally will deny cer-

tiorari where review is sought of a lower court decision

10

which turns solely upon an analysis of the particular facts

involved).

Moreover, despite the petitioner’s representation that

this case presents an “important question of federal law”

[P-15], this matter is not likely to produce an opinion

which will give guidance to lower courts considering

future dormant Commerce Clause cases. As the Petition

reveals, the Third Circuit’s decision with regard to the

Commerce Clause challenge to the mandatory attendance

rule is criticized principally for its alleged improper

application of the balancing test set forth by this Court in

Pike v. Bruce Church, Inc., 397 U.S. at 142. [P-20; P-23 to

P-24]. In short, petitioner suggests that the record does

not contain adequate evidence to satisfy the Pike test

which balances the burden on interstate commerce

against the local benefit. [P-23].

As the Third Circuit properly recognized, under the

Pike balancing test it is necessary only to consider “puta-

tive local benefits.” 397 U.S. at 142. Such putative legisla-

tive or regulatory objectives must be “credibly advanced”

in arguments to a court reviewing a statute or rule under

the Commerce Clause. Philadelphia v. New Jersey, 437 U.S.

617, 624 (1978). Thus, in CTS Corp. v. Dynamics Corp. of

America, 481 U.S. 69, 92 (1987), the Supreme Court

rejected a Commerce Clause claim, despite an Indiana

corporate statute’s effect on certain aspects of interstate

commerce, because it was acknowledged that the State

had a significant interest in regulating corporate entities

within its borders and the Court was “not inclined ‘to

second-guess the empirical judgments of lawmakers con-

cerning the utility of [the] legislation.’” (citation omit-

ted).

11

In rendering its decision in this case, the Third Cir-

cuit emphasized both the traditional authority of state

courts to control who may be admitted to practice before

them and the compelling interest of the states in regulat-

ing the legal profession and the practice of law within

their borders. Tolchin v. Supreme Court of New Jersey, 111

F.3d at 1110 (citing Leis v. Flynt, 439 U.S. 438, 444 n.5

(1979); Goldfarb v. Virginia State Bar, 421 U.S. 773, 792

(1975)). [Pa-25]. These judicially recognized interests,

along with the reasons proffered for the mandatory atten-

dance requirement by the I.C.L.E. respondents [IRa-1;

IRa-11], properly led the Court of Appeals to conclude

that mandatory attendance at the skills and methods

course serves a “defensible educational purpose” which

is “rationally connected to its intended benefit.” Id.

[Pa-23]. Under these circumstances, there was no reason

for a fuller record to be developed to further investigate

either the putative benefits or burdens advanced by the

respective parties.!° Id. at 1111 (citing Goldfarb v. Supreme

Court of Virginia, 766 F.2d 859, 862 (4th Cir. 1985)). [Pa-25

to Pa-26]. Since the Petition seeks certiorari merely to

review the sufficiency of facts upon which the Court of

ae

10 The Petition represents that the record contains an

“unrefuted affidavit” from “an expert in legal education” which

was not considered by the Court of Appeals. [P-23 to P-24].

However, the decision of the Third Circuit expressly

acknowledged the referenced affidavit and held that, despite its

attempt to dispute some of the reasons proffered in support of

the educational purpose of the mandatory attendance rule, it

“failed to raise any genuine issue of material fact as to whether

the mandatory attendance requirement is rationally related to

its intended benefits.” Tolchin v. Supreme Court of New Jersey, 111

F.3d at 1110. [Pa-23].

12

Appeals relied, a writ is not warranted. See United States

v. Johnston, 268 U.S. at 227 (the Supreme Court “do[es] not

grant a certiorari to review evidence and discuss specific

facts”). ~

Notwithstanding the petitioner’s dissatisfaction with

the Third Circuit’s analysis of the mandatory attendance

requirement under the dormant Commerce Clause, the

decision below presents neither a reviewable nor a

reversible question warranting the issuance of a writ of

certiorari to the Third Circuit Court of Appeals. See Ross

v. Moffitt, 417 U.S. 600, 616-17 (1974) (certiorari is not

appropriate where the petitioner seeks to challenge only

the correctness of the lower court’s decision). The

Supreme Court's authoritative voice often has been heard

with regard to the application of Commerce Clause anal-

ysis to constitutional challenges. If the certiorari sought

in the Petition in this case were to be granted, this Court’s

review would focus on the application of well-settled

principles of law. Accordingly, the petitioner’s acknowl-

edgment of “well-established precedent,”~on the face of

its Petition, serves as a clear affirmation that there is no

compelling reason for the writ to be allowed.

II.

THE SUPREME COURT HAS SUGGESTED REPEAT-

EDLY THAT THE INTERESTS OF STATE OR FEDERAL

COURT BARS, IN ASSURING THE COMPETENCE OF

THEIR ATTORNEYS, MAY BE ADDRESSED BY

REQUIRING MANDATORY ATTENDANCE AT SEMI-

NARS ON LEGAL PRACTICE AND PROCEDURE.

In three separate decisions, rendered over the past

twelve years, this Court has suggested that, by requiring

13

mandatory attendance at seminars or lectures on legal

practice, state and federal court bars may constitutionally

address their interests in assuring the competence of their

members. Supreme Court of New Hampshire v. Piper, 470

U.S. 274 (1985); Supreme Court of Virginia v. Friedman, 487

U.S. 59 (1988); Frazier v. Heebe, 482 U.S. 641 (1987). Each of

these decisions was recognized by the Third Circuit Court

of Appeals in its opinion in this case which upheld the

mandatory attendance rule for the skills and methods

course. Tolchin v. Supreme Court of New Jersey, 111 F.3d at

1110 n.5.

The Petition unpersuasively contends that the

reliance placed on these decisions below “is a perversion

of what this Court appears to have intended. ...” [P-18].

The petitioner, however, never explains why New Jer-

sey’s mandatory attendance requirement for the skills

and methods course is unlike the seminar attendance

requirements which were suggested in the foregoing

cases. Since the attendance rule imposed on skill and

methods course registrants in New Jersey is in complete

accord with the suggestions of the Supreme Court, the

Petition has not set forth a compelling reason for a grant

of certiorari on this ground.

In undertaking its Commerce Clause analysis, under

the balancing test set forth in Pike v. Bruce Church, Inc.,

397 U.S. at 142, the Third Circuit necessarily considered

whether “the mandatory attendance requirement for the

skills and methods course is rationally related to the

benefits it is intended to promote.” Tolchin v. Supreme

Court of New Jersey, 111 F.3d at 1110. [Pa-23]. This search

14

for a rational relationship, under Commerce Clause anal-

ysis, is similar to the test applied to constitutional chal-

lenges under the Privileges and Immunities Clause where

the Court must consider whether the alleged discrimina-

tion “bears a close or substantial relationship to the

State’s objective.” Supreme Court of New Hampshire v.

Piper, 470 U.S. at 284.

In deciding whether New Hampshire's state resi-

dency requirements for admission to the bar impinged

upon privileges and immunities protections in Piper, the

Court considered the rationale, proffered by the Supreme

Court of New Hampshire, that nonresident attorneys

“would be less likely . . . to become, and remain, familiar

with local rules and procedures. .. . ” 470 U.S. at 285. This

Court rejected this reason and held that the New Hamp-

shire residency requirement did not bear a substantial

relationship to it. Id. n.19. It pertinently added, however,

that a “less restrictive alternative” by which New Hamp-

shire could assure that nonresident members of its bar

were familiar with local rules and procedures “would be

to require mandatory attendance at periodic seminars on

state practice.” Id. n.19.

Three years later, this Court repeated its approval of

mandatory attendance requirements in the context of

another Privileges and Immunities Clause case. In

Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), a

permanent residency requirement for those admitted to

the Virginia bar “on motion” was challenged. Id. at 61. In

determining that Virginia had not established a substan-

tial reason for this rule, based on its concern that nonresi-

dent attorneys would not keep abreast of legal

15

developments, this Court noted that the state could pro-

tect its interests through other means that did not

infringe constitutional protections. Id. at 69. While it was

emphasized that the Supreme Court “is not well posi-

tioned to dictate specific legislative choices to the State,”

it noted that such alternatives existed and included the

Supreme Court of Virginia “requir[ing] mandatory atten-

dance at periodic continuing legal education courses.” Id.

(citing Supreme Court of New Hampshire v. Piper, 470 U.S. at

285 n.19).

This Court’s approval of mandatory attorney atten-

dance at periodic seminars has not been limited to the

aforecited privileges and immunities cases. In Frazier v.

Heebe, 482 U.S. 641 (1987), a bar membership rule of the

United States District Court for the Eastern District of

Louisiana was held invalid under the Court’s inherent

supervisory powers. That rule, which required that all

applicants for general admission to its bar either reside or

maintain an office in the State of Louisiana, was found to

be unnecessary. Id. at 646. In so holding, this Court perti-

nently added that “other more effective means of ensur-

ing the competence of bar members are available to the

district courts. ...” Id. at 648. Expressly mentioned as

one of these “more effective means” were “seminar atten-

dance requirements.” Id.

Each of the aforecited cases plainly evinces this

Court’s approva! of mandatory attendance at seminars as

a proper means to provide bar members with continuing

legal education on practice and procedure. Although in

neither Piper, Friedman nor Frazier did the Supreme Court

expressly indicate where the seminars, which it sug-

gested, should be offered, there is absolutely nothing in

16

these decisions which would lead one to conclude that

attendance could not be required within the state or

federal jurisdiction served by the bar at issue. In light of

this Court’s prior approval of the very means chosen by

the New Jersey Supreme Court to assure that newly

admitted New Jersey attorneys are aware of local practice

and procedure, there is no reason to grant certiorari to

review the mandatory skills and methods course atten-

dance rule which has been challenged by the petitioner in

this case.

CONCLUSION

This case does not present any question warranting

review by the United States Supreme Court. Accordingly,

it is submitted that the Petition for a Writ of Certiorari to

the Third Circuit Appeals, filed by Robert J. Tolchin,

should be denied.

Respectfully,

Wriiuram B. McGutre

Tompkins, McGuire & WACHENFELD

Counsel of Record

for Respondents

New Jersey Institute for

Continuing Legal Education and

Joseph J. Hogya

MARIANNE M. DEMarco

On the Brief

APPENDIX

la

Exhibit A To The Complaint Filed With The

United States District Court For The

District Of New Jersey On October 12, 1994

[LOGO] ICLE:

Advancing the Profession

FALL

1994

Skills and

Methods Course

Administered for

The New Jersey Supreme Court

by the

New Jersey Institute

for Continuing Legal Education

One Constitution Square,

New Brunswick, NJ 08901 (908) 214-8500

Course Overview

Since 1962, the Skills and Methods Course, a nation-

ally renowned “bridge the gap” program, has helped

prepare thousands of attorneys for the transition from

either law school to practice, or practice in other states to

practice in New Jersey.

The course consists of two components, each of

which must be completed within certain time frames. The

first component is a series of “core courses” which cover

the basics of five subject areas most lawyers need to

know. The second component consists of two phases of

“continuing education courses” that expand your knowl-

edge of New Jersey practice.

2a

Taught by distinguished New Jersey judges, experi-

enced practitioners and related experts, both the “core

courses” and the “continuing education courses” provide

insight on the latest trends and techniques in the areas

covered.

CORE COMPONENT

The first component of the Skills and Methods Course is a

series of five “core courses,” all targeted to New Jersey

practice, including:

@ Family Law

@ Real Estate

@ Will Drafting and Probate Practice

@ Professional Responsibility

and (Choose one)

@ Civil Trial Preparation

or

®@ Criminal Trial Preparation

TIME FRAME AND FORMAT

The complete series of “core courses” is offered four

times each year (spring, summer, fall and winter cycles)

in regional locations throughout the state. The cycles are

offered in several different formats —- weekdays, evenings,

and Saturdays — for your convenience. You can choose the

format, location, and time schedule that best suits your

needs, but you must complete the series of “core courses”

within two cycles after you are sworn in. Or, you may

take the series of “core courses” before being sworn in,

3a

even as early as your final semester of law school, if you

submit a letter of good standing from your Academic

Dean.

PRACTICE EXERCISES

Each of the five “core courses” includes the prepavat.on

of a written exercise that is designed to simulate the types

of matters new lawyers would be asked to handle by a

client (e.g., a real estate closing, a will, a complaint, etc.).

Exercises must be completed and submitted by assigned

dates, and you must receive passing grades on all five

exercises in order to complete this requirement. If you

receive a failure or an incomplete grade on an exercise,

you may be required to complete a makeup exercise and

re-register for that lecture in a subsequent cycle.

FEES

There is a $275 registration fee for the core component

which includes tuition for the five core courses, and a

complete library of 17 practice handbooks that also cover

the continuing education course topics.

TIME FRAME

SWORN IN CYCLE

Must Complete:

December Winter

or

Spring Cycle

June Summer

or -

Fall Cycle

4a

CYCLES

MONTHS

CYCLE OFFERED FORMAT

Spring April/May Two weekday evenings per

week for five weeks

Summer August Five full day programs on

consecutive weekdays

(presented on videotape)

Fall Sept./Oct. Two weekday evenings per

week for five weeks

Winter Jan./Feb. Five full day programs on

consecutive Saturdays

CONTINUING EDUCATION COMPONENT

After you complete the “core courses”, you advance to

the continuing education component, which is broken

down into two phases of two courses during each phase.

In the first phase, you must take Administrative Law, and

either Civil or Criminal Trial Preparation, whichever was

not selected as a core course. In the second phase, you

can choose any two courses from the list of programs

noted on the chart below. The courses offered as part of

the continuing education component are presented live

twice each year in North, Central and South Jersey loca-

tions, and are also presented as video replays at various

other times during the year.

Dates, times and full descriptions of each course are

featured in the ICLE Newsletter, which you will receive

on a regular basis once you register for core courses. You

also will receive periodic mailings reminding you of your

requirements. Tuition for each continuing education

ere wesiccmiiiie Mie Weneemeciees

5a

course is $25 in advance or $75 at the door. There are no

practice exercises for these course and materials are

included within the library of 17 practice handbooks you

receive prior to taking the core courses.

PHASE I

Phase I of the Continuing Education Component

includes:

“ Administrative Law

¥ and either Civil or Criminal Trial Preparation (which-

ever seminar was not selected as a core course.)

You must complete Phase I of the Continuing Education

Component within the year beginning one year after you

successfully sat for the bar exam. For example, if you

successfully sat for the bar exam in February 1994, you

must complete both courses in Phase I within the year

beginning February 1995 (and not later than January

1996). If your schedule allows, you can complete these

courses earlier than the required time frame.

PHASE II

During Phase II of the Continuing Education Component,

you may select any two courses from the following:

Purchase, Organization and Sale of a Small Business

Bankruptcy Practice

Collection Practice

Municipal Court Practice

Workers’ Compensation Practice

rr rr PP

Landlord/Tenant Practice

6a

You must complete Phase II of the Continuing Education

Component within the year beginning two years after

you successfully sat for the bar exam. For example, if you

successfully sat for the bar exam in February 1994, you

must complete both courses in Phase II within the year

beginning February 1996 (and not later than January

1997). Again, you can always complete these courses

earlier than outlined above if your schedule permits.

Staying Informed

You will be notified by letter after you successfully

complete each phase of the Skills and Methods require-

ment. Again, attendance at core courses and continuing

education courses is mandated by the New Jersey

Supreme Court, and you must complete all phases within

the stated time frames to remain eligible to practice law

in New Jersey. No waivers are granted based on prior

experience in another jurisdiction or experience gained in

a law school clinical program or clerkship.

In addition to the Skills and Methods Course, ICLE

offers nearly 300 other seminars each year that can assist

you as you advance in the profession. Throughout your

career, you can turn to ICLE as your primary resource for

staying current with New Jersey law and you can take

advantage of the wide range of books, cassettes, and

software products designed to improve your practice.

ICLE is a nonprofit, self-supporting joint venture of

the New Jersey State Bar Association, Rutgers — The State

University of New Jersey, and Seton Hall University.

aati

a): Neha ds.

7a

— REGISTER EARLY

To guarantee your seat in the format and cycle that

best suits your needs, please register early. Registrations

are processed on a “first come - first served” basis. Don’t

risk being closed out of your preferred location. Registra-

tion and tuition for the Fall 1994 cycle must be received

by August 8, 1994. Registrations received after that date

are subject to a $50 late fee, and can only be accepted if

space is still available.

Remember to check off the location where you prefer

to attend, and mail the application along with credit card

information or a check for the full tuition to: Skills and

Methods Course Director, ICLE, One Constitution Square,

New Brunswick, NJ 08901-1500.

What You’ll Receive

@ Confirmation letter with your Skills ID#. Please retain

this letter for future reference and include your Skills ID#

on all correspondence and exercises. There are often

many registrants with the same or similar names. The

Skills ID# helps to ensure that you will receive proper

credit.

@ Library of 17 practice handbooks, lecture material, prac-

tice exercises and forms. These items will be shipped via

UPS. Please indicate a preferred shipping address where

someone will be present to sign for receipt of the package.

Do not use P.O. Box numbers. If you register before the

deadline, you can expect to receive your materials approxi-

mately two weeks before the first scheduled lecture.

@ Map with directions to course location.

8a

APPLICATION FORM

NAME MIDDLE

LAST FIRST INITIAL

PREFERRED SHIPPING ADDRESS FOR MATERIALS:

Home Business

NOTE: Do not use P.O. Box numbers in any address. ICLE

ships via UPS. Someone must be present at the address to

sign a receipt for materials.

HOME ADDRESS

NUMBER AND STREET APT. NO.

CITY STATE ZIP CODE

AREA CODE PHONE

BUSINESS ADDRESS

LAW FIRM OR COMPANY NAME

NUMBER AND STREET SUITE NO.

CITY STATE ZIP CODE

AREA CODE PHONE AREA CODE FAX

LAW SCHOOL

YEAR GRADUATED

~

9a

NOTE: FINAL SEMESTER LAW STUDENTS MUST

OBTAIN AND SUBMIT CERTIFICATION OF GOOD

STANDING FROM LAW SCHOOL DEAN OF STUDENTS

IN ORDER TO TAKE SKILLS AND METHODS COURSE.

SOCIAL SECURITY NUMBER

GENDER: MALE FEMALE

CHECK BOX WHERE APPLICABLE:

NEW REGISTRANTS:

I enclose my full $275.00 tuition.

If registering after 8/8/94, I enclose $325 which

includes $50.00 late fee.

RE-REGISTRANTS:

I enclose my full $75.00 re-registration fee.

If registering after 8/8/94, I enclose $125 which

includes $50.00 late fee.

EITHER: (Choose One Trial Course)

Civil Trial Preparation or

Criminal Trial Preparation

PREFERRED LOCATION:

Hanover Marriott, Whippany SSNORTH - 576

Hilton Gateway, Newark SSNORTH - 583

NJ Law Center, New Brunswick SSCENTRAL — 59

Sheraton Inn, Cherry Hill SSSOUTH - 597

10a

Month/Year

I successfully sat for the NJ Bar

Examination in

I was admitted to the NJ Bar in

PAYMENT BY CHECK:

FIRM PERSONAL

(Make all checks payable to NJ ICLE)

PAYMENT BY CREDIT CARD:

VISA MASTERCARD AMEX

ACCOUNT NUMBER

EXPIRATION DATE TODAY’S DATE

NAME ON CARD

SIGNATURE

ICLE OFFICE USE ONLY

AMOUNT PAID $ CHECK #

DATE RECEIVED ID#

From the Skills and Methods

Course Director

[LOGO]

NEW JERSEY INSTITUTE FOR

CONTINUING LEGAL EDUCATION

The non-profit, continuing education service of the

NEW JERSEY STATE BAR ASSOCIATION

SETON HALL UNIVERSITY

RUTGERS-THE STATE UNIVERSITY OF NEW JERSEY

lla

Dear New or Prospective Attorney:

Congratulations on your decision to practice law in

New Jersey.

The law is a dynamic and exciting field - one that

calls for constant learning and professional development.

That is why ICLE, the Institute for Continuing Legal

Education, is ready to provide you with the advanced

training and information you need to effectively practice

law in New Jersey. For more than 30 years, ICLE has

served the New Jersey bench and bar by offering a wide

range of seminars, books, audiocassettes, videotapes, and

computer software designed to advance the profession.

ICLE also administers the Skills and Methods Course on

behalf of the New Jersey Supreme Court. The Skills and

Methods Course is a nationally renowned “bridge the

gap” program that has helped prepare thousands of New

Jersey attorneys for the transition for either law school to

practice or practice in other states to practice in New

Jersey.

Because New Jersey is committed to the highest stan-

dards of legal professionalism, every attorney must com-

plete all portions of the Skills and Methods Course in

addition to passing the bar examination and satisfying

character and fitness requirements to be eligible to prac-

tice law in New Jersey. The Skills and Methods Course

supplements your formal education or previous experi-

ence in another state through a series of practical semi-

nars, written exercises and comprehensive handbooks

that are designed to teach you the local nuances of New

Jersey practice so you can get up to speed quickly and

avoid costly mistakes.

12a

The Skills and Methods Course is required for all

attorneys beginning to practice in New Jersey, so I

encourage you to register early to get the time frame and

course format you prefer. As explained in this applica-

tion, you don’t need to wait until you receive your bar

exam results to register for the course.

We look forward to helping you fulfill your manda-

tory Skills and Methods requirement and to serving as

your partner in practice throughout your legal career.

Congratulations and continued success.

Sincerely,

Joseph J. Hogya, Esq.

Skills and Methods

Course Director

A COMPLETE LIBRARY

Upon registering for the core component, you will receive

a comprehensive library of 17 practice handbooks. In

addition to using these books at required classes, you also

can use the complete set to resolve many problems com-

monly experienced in the first few years of practice. They

contain forms and checklists that experienced practi-

tioners regularly use. You'll also receive an Exercise

Materials packet with five practice exercises for core

courses, along with note-taking outlines and commonly

used legal forms.

Your library:

@ Real Estate Closing Procedures

@ Basic Estate Planning

13a

Civil Trial Preparation

Try-It Again

Workers’ Compensation

Bankruptcy

Municipal Land Use

Organization and Sale of Small Businesses

Professional Responsibility in New Jersey

Trust and Business Accounting for Attorneys

Family Law

Basic Estate Administration

Criminal Trial Preparation

Tenant/Landlord Practice

Collection Practice

Municipal Court

Administrative Law

The items delivered will be the most current editions

available at the time of shipment. To keep your library

current, you may wish to purchase updated editions as

they become available. Check the ICLE Catalog for infor-

mation on new and updated publications.

Tentative Fall 1994 Course Schedule

The Fall 1994 cycle consists of lectures presented on two

weekday evenings per week for five weeks. All lectures

meet from 6 p.m. to 10 p.m. Please plan to arrive early so

that you can register and be seated before the program

begins.

l4a

COURSE DATE

Family Law Sept. 12 & 13

Real Estate Oct. 3 & 4

Will Drafting/Probate Practice Oct. 10 & 11

Professional Responsibility Oct. 17 & 18

Civil Trial or Criminal Trial

Preparation Oct. 24 & 25

Refunds

Tuition for the Fall 1994 program will be fully refunded if

your request is received before August 8, 1994 and all

course materials are returned unused. If your request is

received after that date, there is a $50 service charge to

cover printing, postage and administrative costs.

Inclement Weather Cancellations

ICLE generally does not cancel seminars due to inclement

weather. However, in the event of SEVERE weather con-

ditions, please call 908-249-5100 or 908-214-8500 after 7:30

a.m. for daytime programs or after 3 p.m. for evening

programs. You also can listen to radio stations 101.5 FM

or 1260 AM for inclement weather cancellations, or call

the actual site after 7:30 a.m. on the morning of the

program.

15a

Course Locations

NORTH JERSEY

Hanover Marriott, Whippany

Route 10 off Rts. 287, 80, 46

NORTH JERSEY

Hilton Gateway, Newark

Opposite Penn Station

CENTRAL JERSEY

NJ Law Center, New Brunswick

Ryders Lane Exit off Rt. 1

SOUTH JERSEY

Sheraton Inn, Cherry Hill

Route 70 West and I-295

To ensure adequate seating, you can attend only those

courses and sites for which you register. If you need to

change sites or courses after submitting this Registration

form, please contact the Skills and Methods Course Direc-

tor.

REMEMBER: REGISTER EARLY Don’t get closed out of

the session you want! Send your application in today.