|Supreme Court of New Hampshire v. Piper
[ Powell ]
[ White ]
[ Rehnquist ]
Supreme Court of New Hampshire v. Piper
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
JUSTICE REHNQUIST, dissenting.
Today the Court holds that New Hampshire cannot decide that a New Hampshire lawyer should live in New Hampshire. This may not be surprising to those who view law as just another form of business frequently practiced across state lines by interchangeable actors; the Privileges and Immunities Clause of Art. IV, § 2, has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate. The decision will be surprising to many, however, because it so clearly disregards the fact that the practice of law is -- almost by definition -- fundamentally different from those other occupations that are practiced across state lines without significant deviation from State to State. The fact that each State is free, in a large number of areas, to establish independently of the other States its own laws for the governance of its citizens, is [p290] a fundamental precept of our Constitution that, I submit, is of equal stature with the need for the States to form a cohesive union. What is at issue here is New Hampshire's right to decide that those people who in many ways will intimately deal with New Hampshire's self-governance should reside within that State.
The Court's opinion states that the Privileges and Immunities Clause of Art. IV, § 2, "was intended to ‘fuse into one Nation a collection of independent, sovereign States.'" Ante at 279 (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948)). To this end, we are told, the Clause has been construed to protect the fundamental "privilege" of citizens of one State to do business in another State on terms substantially equal with that State's citizens. This privilege must be protected to effectuate the Clause's purpose to "create a national economic union." Ante at 280. And for the Court, the practice of law is no different from those occupations considered in earlier Privileges and Immunities Clause cases, because "the practice of law is important to the national economy." Ante at 281. After concluding that the Clause applies to lawyers, the Court goes on to reject the many reasons the Supreme Court of New Hampshire advances for limiting the State's lawyers to those who reside in state. The Court either labels these reasons insubstantial or it advances, with the assurance of an inveterate second-guesser, a "less restrictive means" for the State to attack the perceived problem.
The Framers of our Constitution undoubtedly wished to ensure that the newly created Union did not revert to its component parts because of interstate jealousies and insular tendencies, and it seems clear that the Art. IV Privileges and Immunities Clause was one result of these concerns. But the Framers also created a system of federalism that deliberately allowed for the independent operation of many sovereign States, each with their own laws created by their own legislators and judges. The assumption from the beginning was that the various States' laws need not, and would not, [p291] be the same; the lawmakers of each State might endorse different philosophies and would have to respond to differing interests of their constituents, based on various factors that were of inherently local character. Any student of our Nation's history is well aware of the differing interests of the various States that were represented at Philadelphia; despite the tremendous improvements in transportation and communication that have served to create a more homogeneous country the differences among the various States have hardly disappeared.
It is but a small step from these facts to the recognition that a State has a very strong interest in seeing that its legislators and its judges come from among the constituency of state residents, so that they better understand the local interests to which they will have to respond. The Court does not contest this point; it recognizes that a State may require its lawmakers to be residents without running afoul of the Privileges and Immunities Clause of Art. IV, § 2. See ante at 282, n. 13.
Unlike the Court, I would take the next step, and recognize that the State also has a very "substantial" interest in seeing that its lawyers also are members of that constituency. I begin with two important principles that the Court seems to have forgotten: first, that in reviewing state statutes under this Clause "States should have considerable leeway in analyzing local evils and prescribing appropriate cures," United Building & Construction Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 223 (1984) (citing Toomer, supra, at 396), and second, that regulation of the practice of law generally has been "left exclusively to the States. . . ." Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam). My belief that the practice of law differs from other trades and businesses for Art. IV, § 2, purposes is not based on some notion that law is for some reason a superior profession. The reason that the practice of law should be treated differently is that law is one occupation that does not [p292] readily translate across state lines. [n1] Certain aspects of legal practice are distinctly and intentionally nonnatonal; in this regard, one might view this country's legal system as the antithesis of the norms embodied in the Art. IV Privileges and Immunities Clause. Put simply, the State has a substantial interest in creating its own set of laws responsive to its own local interests, and it is reasonable for a State to decide that those people who have been trained to analyze law and policy are better equipped to write those state laws and adjudicate cases arising under them. The State therefore may decide that it has an interest in maximizing the number of resident lawyers, so as to increase the quality of the pool from which its lawmakers can be drawn. [n2] A residency law such as the one at issue is the obvious way to accomplish these goals. Since, at any given time within a State, there is only enough legal work to support a certain number of lawyers, each out-of-state [p293] lawyer who is allowed to practice necessarily takes legal work that could support an in-state lawyer, who would otherwise be available to perform various functions that a State has an interest in promoting. [n3]
Nor does the State's interest end with enlarging the pool of qualified lawmakers. A State similarly might determine that, because lawyers play an important role in the formulation of state policy through their adversary representation, they should be intimately conversant with the local concerns that should inform such policies. And the State likewise might conclude that those citizens trained in the law are likely to bring their useful expertise to other important functions that benefit from such expertise and are of interest to state governments -- such as trusteeships, or directorships of corporations or charitable organizations, or school board positions, or merely the role of the interested citizen at a town meeting. Thus, although the Court suggests that state bars can require out-of-state members to "represent indigents and perhaps to participate in formal legal-aid work," ante at 287, the Court ignores a host of other important functions that a State could find would likely be performed only by in-state bar members. States may find a substantial interest in members of their bar being residents, and this insular interest -- as with the opposing interest in interstate harmony represented by Art. IV, § 2 -- itself has its genesis in the language and structure of the Constitution. [n4] [p294]
It is no answer to these arguments that many lawyers simply will not perform these functions, or that out-of-state lawyers can perform them equally well, or that the State can devise less restrictive alternatives for accomplishing these goals. Conclusory second-guessing of difficult legislative decisions, such as the Court resorts to today, is not an attractive way for federal courts to engage in judicial review. Thus, whatever the reality of how much New Hampshire can expect to gain from having the members of its bar reside within that State, the point is that New Hampshire is entitled to believe and hope that its lawyers will provide the various unique services mentioned above, just as it is entitled to believe that the residency requirement is the appropriate way to that end. As noted, some of these services can only be provided by lawyers who also are residents. With respect to the other services, the State can reasonably find that lawyers who reside in state are more likely to undertake them.
In addition, I find the Court's "less restrictive means" analysis both ill-advised and potentially unmanageable. Initially I would note, as I and other Members of this Court have before, see Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 599-600 (1980) (REHNQUIST, J., dissenting) (citing Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 188-189 (1979) (BLACKMUN, J., concurring)); cf. Florida v. Royer, 460 U.S. 491, 528-529 (1983) (REHNQUIST, J., dissenting), that such an analysis, when carried too far, will ultimately lead to striking [p295] down almost any statute on the ground that the Court could think of another "less restrictive" way to write it. This approach to judicial review, far more than the usual application of a standard of review, tends to place courts in the position of second-guessing legislators on legislative matters. Surely this is not a consequence to be desired.
In any event, I find the less-restrictive-means analysis, which is borrowed from our First Amendment jurisprudence, to be out of place in the context of the Art. IV Privileges and Immunities Clause. Toomer v. Witsell, 334 U.S. at 396, and Hicklin v. Orbeck, 437 U.S. 518, 529-530 (1978), indicate that the means employed by the State should bear a "substantial" or "close relation" to the State's objectives, and they speak in terms of whether the State's approach is "tailored" to its stated goal. This approach perhaps has a place: to the extent that an obvious way to accomplish the State's proffered goal is apparent, the fact that the State did not follow that path may indicate that the State had another, less legitimate goal in mind. But I believe the challenge of a "less restrictive means" should be overcome if merely a legitimate reason exists for not pursuing that path. And in any event, courts should not play the game that the Court has played here -- independently scrutinizing each asserted state interest to see if it could devise a better way than the State to accomplish that goal. Here the appellee primarily argues that, if the State really was concerned about out-of-state lawyers, it would not allow those who leave the State after joining the bar to remain members. The answer to this argument was well stated by the dissenting judges in the Court of Appeals for the First Circuit:
[T]he Supreme Court of New Hampshire might have concluded that not many New Hampshire lawyers will both pull up stakes and continue to practice in the state. And it might further believe that the bureaucracy required to keep track of such comings and goings would not be worth the trouble. . . .
723 F.2d 110, 122, n. 4 (1983) (opinion of Campbell, C.J., and Breyer, J.). [p296]
There is yet another interest asserted by the State that I believe would justify a decision to limit membership in the state bar to state residents. The State argues that out-of-state bar members pose a problem in situations where counsel must be available on short notice to represent clients on unscheduled matters. The Court brushes this argument aside, speculating that
a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire,
and suggesting that, in any event, the trial court could alleviate this problem by requiring the lawyer to retain local counsel. Ante at 286-287. Assuming that the latter suggestion does not itself constitute unlawful discrimination under the Court's test, there nevertheless may be good reasons why a State or a trial court would rather not get into structuring attorney-client relationships by requiring the retention of local counsel for emergency matters. The situation would have to be explained to the client, and the allocation of responsibility between resident and nonresident counsel could cause as many problems as the Court's suggestion might cure.
Nor do I believe that the problem can be confined to emergency matters. The Court admits that, even in the ordinary course of litigation, a trial judge will want trial lawyers to be available on short notice; the uncertainties of managing a trial docket are such that lawyers rarely are given a single date on which a trial will begin; they may be required to "stand by" -- or whatever the local terminology is -- for days at a time, and then be expected to be ready in a matter of hours, with witnesses, when the case in front of them suddenly settles. A State reasonably can decide that a trial court should not have added to its present scheduling difficulties the uncertainties and added delays fostered by counsel who might reside 1,000 miles from New Hampshire. If there is any single problem with state legal systems that this Court might consider "substantial," it is the problem of delay [p297] in litigation -- a subject that has been profusely explored in the literature over the past several years. See, e.g., Attacking Litigation Costs and Delay, Final Report of the Action Commission to Reduce Court Costs and Delay (American Bar Association 1984); S. Wasby, T. Marvell, & A. Aikman, Volume and Delay in State Appellate Courts: Problems and Responses (1979). Surely the State has a substantial interest in taking steps to minimize this problem. Thus, I think that New Hampshire had more than enough "substantial reasons" to conclude that its lawyers should also be its residents. I would hold that the Rule of the New Hampshire Supreme Court does not violate the Privileges and Immunities Clause of Art. IV.
1. I do not mean to suggest that the practice of law, unlike other occupations, is not a "fundamental" interest subject to the two-step analysis outlined by the Court. It makes little difference to me which prong of the Court's analysis is implicated, although the thrust of my position is that there are significant state interests justifying this type of interstate discrimination. Although one might wonder about the logical extensions of the Court's loose language concerning "less restrictive means," see ante at 470 U.S. 284"]284-287, the Court's opinion clearly contemplates that some residency requirements concerning trades or businesses will be permissible under the Privileges and Immunities Clause. I note that New Hampshire's decision with respect to lawyers certainly will not be the only residency requirement for which States could forward substantial reasons, nor will any valid residency requirement necessarily involve only one particular trade or business. We indicated as much last Term in 284-287, the Court's opinion clearly contemplates that some residency requirements concerning trades or businesses will be permissible under the Privileges and Immunities Clause. I note that New Hampshire's decision with respect to lawyers certainly will not be the only residency requirement for which States could forward substantial reasons, nor will any valid residency requirement necessarily involve only one particular trade or business. We indicated as much last Term in United Building & Construction Trades Council v. Mayor & Council of Camden, 465 U.S. 208 (1984).
2. The Court attempts to rebut this argument with statistics indicating the number of presently practicing lawyers in the New Hampshire Legislature. Ante at 287-288, n. 23. While I am not convinced of the usefulness of these statistics, I note, in any event, that the Court neglects to point out that only 6 of the 124 judges presently sitting in New Hampshire courts are nonlawyers, and that only 12 of the 89 Supreme Court Justices in the State's history have been nonlawyers.
3. In New Hampshire's case, lawyers living 40 miles from the state border in Boston could easily devote part of their practice to New Hampshire clients. If this occurred, a significant amount of New Hampshire legal work might wind up in Boston, along with lawyers who might otherwise reside in New Hampshire.
4. I do not find the analysis of In re Griffiths, 413 U.S. 717 (1973), to be controlling here. Griffiths dealt with an Equal Protection Clause challenge to a state bar admission rule that excluded aliens. In the course of striking down that restriction, this Court held that lawyers should not be considered "officers of the court" in the sense that they actually wield state powers. Id. at 727-729. Whatever the merits of that conclusion, my point here is different; whether or not lawyers actually wield state powers, the State nevertheless has a substantial interest in having resident lawyers. In Griffiths, the alien lawyers were state residents. The harms that a State can identify from allowing nonresident lawyers to practice are very different from the harms posited in Griffiths as arising from allowing resident alien lawyers to practice. I note in addition that the standards established for reviewing alienage classifications under the Equal Protection Clause are not equated with the standard of review under the Art. IV Privileges and Immunities Clause.