# Opposition Brief — Tolchin v. Supreme Court of New Jersey

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 977

## Text

No. 97-209 eens

In The SEP 3

Supreme Court of the ee -

October Term, 1996
+

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.

+

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
+

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... .

+

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.

+

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A2. Public record. Not legal advice.