Appellant
Supreme Court of Virginia, et al.
Appellee
Myrna E. Friedman, et al.
Appellant's Claim
The Virginia Supreme Court Rule 1A:1 required an applicant to be a resident of Virginia for admission to the Virginia Bar. Appellants claimed that this residency requirement did not violate the Privileges and Immunities Clause of the Constitution.
Chief Lawyer for Appellant
Gregory E. Lucyk
Chief Lawyer for Appellee
Cornish F. Hitchcock
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Anthony M. Kennedy (writing for the Court), Thurgood Marshall, Sandra Day O'Connor, John Paul Stevens, Byron R. White
Justices Dissenting
William H. Rehnquist, Antonin Scalia
Place
Washington, D.C.
Date of Decision
20 June 1988
Decision
The Supreme Court affirmed the court of appeals decision that the residency requirement of the Virginia Rule violated the Privileges and Immunities Clause.
Significance
The Supreme Court of Virginia failed to prove that its residency requirementas a prerequisite for admission to the Virginia State Bar Association did notdiscriminate against nonresidents. The Court found that the right to practice law was an essential activity protected by conditional criteria stipulatedunder the Privileges and Immunities Clause. This decision reaffirmed a standard of implementation of the Privileges and Immunities Clause set in previousprecedents, which could be applied to other professions regarded as vital tonational interests.
Myrna E. Friedman, a resident of Virginia from 1977 to 1986, was employed asa civilian attorney by the Department of the Navy in Arlington, Virginia, from 1977 to 1981, and as an attorney in private practice in Washington, D.C., from 1982 to 1986. In January of 1986 she started working as associate generalcounsel for ERC International, Inc., a Delaware corporation, and she was practicing and maintaining her offices at the company's place of business in Vienna, Virginia. In February of 1986 she married and moved to Maryland. Four months later, in June of 1986, she applied for admission to the Virginia bar "on motion." Because she had experience practicing law, she requested admissionto the Virginia bar without taking Virginia's bar examination.
The Virginia Supreme Court Rule 1A:1 permits admission on motion of qualifiedlawyers who had been admitted to practice in another state. This rule was designed as an ameliorative provision for those lawyers who had previously practiced in another jurisdiction and who wanted to become new residents of Virginia. The rule required, among other things, reciprocity between states; the other jurisdiction must admit Virginia's attorneys without examination. As a part of the procedure, the Virginia Supreme Court stipulated that the applicant:
Friedman offered her arguments in a letter accompanying her application saying that she would practice full-time as a member of the Virginia bar and thatshe would keep informed of changes in the local law. Stating that her petition as a nonresident for admission to the bar, on motion, was under the protection of the Privileges and Immunities Clause of Article IV, 2, of the FederalConstitution, she also referred to the U.S. Supreme Court's decision in Supreme Court of New Hampshire v. Piper (1985). However, Friedman's requestwas denied on the grounds that she was no longer a resident of Virginia. Therationale for denial by the clerk of the Supreme Court of Virginia stated that the court had concluded that the U.S. Supreme Court's decision in Piper was not applicable to the "discretionary" residence requirement of the Virginia rule. (Virginia had "discretionary" freedom to choose to apply the residency requirement as a condition of admission by reciprocity.)
The case of Supreme Court of New Hampshire v. Piper (1985) invalidateda state residency requirement for admission to practice, holding that it violated the Privileges and Immunities Clause. The clause forbade any discrimination against residents of other states in favor of its own and was intended to create a national economic union, but it also protected other interests relating to the union (e.g., in Doe v. Bolton [1973], the right to seek medical care). The clause is self-executory: its enforcement is dependent uponthe judicial process. In deciding the Piper case, the U.S. Supreme Court used a previously established, two-pronged test which was intended for residency restrictions that may have limited privileges and immunities protections. The test examined if the activity in question was essential for the interest of the nation and whether restrictions bore a substantial relationship to the objectives of a state. In the Piper case, the Court also recognized the right to practice law as an essential activity.
Higher Courts' Decisions
In the U.S. District Court for the Eastern District of Virginia, Friedman filed suit against the Supreme Court of Virginia and the clerk of the court. Sheclaimed that Virginia's residency requirement violated the Privileges and Immunities Clause. The district court ruled in Friedman's favor, and the Courtof Appeals for the Fourth Circuit affirmed.
In the trial before the district court, the attorney for the Supreme Court ofVirginia and its clerk reasoned that the Privileges and Immunities Clause was not violated by the residency requirement of the Virginia rule as long as all applicants were allowed to gain admission to the bar by passing the bar examination. The appellant's next argument was that the residency requirement,together with the full-time practice requirement, was designed to guarantee that a lawyer admitted on motion would be as committed to service and as familiar with Virginia law as an attorney who entered the Virginia bar by examination.
The district court disagreed with the appellant's argument because the Privileges and Immunities Clause was implicated whenever a state did not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents. Moreover, the court reasoned that it was mere speculation that residents would respect their commitments to practice full time in Virginia more than nonresidents. The state, without violating constitutional protections, could also further its interest in having lawyers well-acquainted with legal developments by using other equally effective means,such as the requirement that applicants maintain an office in Virginia. Referring to the two-pronged test used in Supreme Court of New Hampshire v. Piper,the Court concluded that there was not substantial reason for discrimination, nor did the discrimination bear a substantial relationship to the objectives of the state. Subsequently, the lower court's decision was unanimously affirmed by the court of appeals. Dissatisfied with that decision, the Supreme Court of Virginia and its clerk appealed again and the U.S. Supreme Courtagreed to hear their case.
Higher Courts' Decisions Affirmed
After considering previous court decisions and reviewing arguments, the U.S.Supreme Court, on a 7-2 vote, affirmed the decision of the district court andthe court of appeals, holding that Virginia's residency requirement for admission on motion to the state's bar violated the Privileges and Immunities Clause. Since this clause of the Constitution is enforced only through the judicial process, the Court employed a two-pronged test to resolve the case. All appellant's arguments were carefully considered to determine if they satisfiedthe two inquiries of the test. The action in question was considered of national and state interests.
Appellants contended that the residency requirement of the Virginia rule offended neither part of the two-pronged test; neither was discretionary admission provided by this rule a privilege protected by the Privileges and Immunities Clause. First, admission on motion was not the only means of entering the Virginia Bar since an applicant, without regard to residence, could gain admission by passing the bar examination. Second, the privilege of admission on motion was not protected by the clause because the state could, without constitutional violation, require all applicants to pass an examination.
Writing for the majority, Justice Kennedy decided that neither argument was persuasive. Kennedy wrote that after considering Supreme Court precedents, thepractice of law was sufficiently basic to the national economy, and therefore, with regard to the first question of the two-pronged test, it was protected by the clause. Kennedy pointed out that Supreme Court of Virginia's argument contradicted precedence, notably, Supreme Court of New Hampshire v. Piper. In that case, the rule was struck down even though it had not resultedin the total exclusion of nonresidents from the practice of law in the state. The appellant's second argument was equally irrelevant since "a state's abstract authority to require from . . . resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held toshield the discriminatory distinction from the reach of the Privileges and Immunities Clause." While Justice Kennedy conceded that the Privileges and Immunities Clause was not an absolute where substantial reasons for discrimination existed, he felt the degree of discrimination enforced by the Supreme Courtof Virginia bore a close relation to such reasons.
The majority opinion ruled that the Supreme Court of Virginia's two main justifications for the residence requirement did not sufficiently satisfy the two-pronged test. The Court held that the ability or willingness of a nonresident attorney to respect the bar and further its interests to the same degree asa resident lawyer did not depend on whether s/he entered the bar on motion or on examination. Kennedy wrote that it was indisputable that Friedman had asubstantial stake in the practice of law in Virginia and there appeared to beno reason why she would not "remain abreast of changes in the law." As to Virginia's justified concern to have its attorneys abreast of legal developments, the Court noted that there were alternative means to achieve this end without infringing constitutional protections. For example, Kennedy affirmed thecourt of appeals explanation that the requirement for applicants to maintainan office in Virginia was equally effective as the residency restriction andtherefore rendered the residency restriction largely redundant.
Chief Justice Rehnquist and Justice Scalia felt that, with respect to earlierprecedents, the Privileges and Immunities Clause did not "require States toignore residency when admitting lawyers to practice in the way that they mustignore residency when licensing traders in foreign goods . . . " (Ward v.Maryland. [1871]. In addition, Rehnquist wrote that Virginia's rule allowing admission on motion was intended to help lawyers who would become new residents of Virginia. This rule enabled them to gain admission to the Virginiabar on the basis of their previous practice. In Rehnquist's opinion, the Court's decision penalized Virginia for that, and he expressed his concern thatVirginia might decide to eliminate admission on motion altogether.
Impact
The U.S. Supreme Court's ruling affirmed a new standard of implementation ofthe Privileges and Immunities Clause of Article IV, 2, of the Constitution. More importantly, the decision reestablished precedence set in Supreme Court of New Hampshire v. Piper.The right to practice law was recognized as an activity essential for the interest of the nation and therefore protected by the Privileges and Immunities Clause. In turn, by holding to the two-pronged test for the right to pursue a licensed profession, this case firmly established a standard that may be applied to other licensed professions, such as medicine, if it is estimated to be essential to national interests.
Related Cases
Privileges and Immunities Clause: Residency Requirements
Residency is the length of time a person must stay in a particular area to enjoy certain legal protections or benefits. States have frequently sought to limit the amount of benefits or protections a person new to the state, or nota resident, might receive. For some rights, such as to file suit in state courts, a person must simply prove they have sufficient interests in a state, such as through business. However, durational residency requirements may actually demand a person actually live in the state for a specified period of time.
When residency requirements are applied to fundamental constitutional rights,such as welfare and public housing benefits, basic medical care, and voting,the state must demonstrate a strong compelling interest. Often such requirements violate the Equal Protection Clause by restricting the fundamental constitutional right for the poor to travel between states as others do. For otherrights or privileges, including to run for public office, practice a profession, government employment, attend certain public schools, and initiate a lawsuit, the state must only demonstrate a reasonable basis for the restriction.By the 1990s most states had dropped durational requirements for voting andenacted motor-voter laws, meaning a person can vote when they apply for a drivers license.
Sources
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.
Supreme Court of Virginia, et al.
Appellee
Myrna E. Friedman, et al.
Appellant's Claim
The Virginia Supreme Court Rule 1A:1 required an applicant to be a resident of Virginia for admission to the Virginia Bar. Appellants claimed that this residency requirement did not violate the Privileges and Immunities Clause of the Constitution.
Chief Lawyer for Appellant
Gregory E. Lucyk
Chief Lawyer for Appellee
Cornish F. Hitchcock
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Anthony M. Kennedy (writing for the Court), Thurgood Marshall, Sandra Day O'Connor, John Paul Stevens, Byron R. White
Justices Dissenting
William H. Rehnquist, Antonin Scalia
Place
Washington, D.C.
Date of Decision
20 June 1988
Decision
The Supreme Court affirmed the court of appeals decision that the residency requirement of the Virginia Rule violated the Privileges and Immunities Clause.
Significance
The Supreme Court of Virginia failed to prove that its residency requirementas a prerequisite for admission to the Virginia State Bar Association did notdiscriminate against nonresidents. The Court found that the right to practice law was an essential activity protected by conditional criteria stipulatedunder the Privileges and Immunities Clause. This decision reaffirmed a standard of implementation of the Privileges and Immunities Clause set in previousprecedents, which could be applied to other professions regarded as vital tonational interests.
Myrna E. Friedman, a resident of Virginia from 1977 to 1986, was employed asa civilian attorney by the Department of the Navy in Arlington, Virginia, from 1977 to 1981, and as an attorney in private practice in Washington, D.C., from 1982 to 1986. In January of 1986 she started working as associate generalcounsel for ERC International, Inc., a Delaware corporation, and she was practicing and maintaining her offices at the company's place of business in Vienna, Virginia. In February of 1986 she married and moved to Maryland. Four months later, in June of 1986, she applied for admission to the Virginia bar "on motion." Because she had experience practicing law, she requested admissionto the Virginia bar without taking Virginia's bar examination.
The Virginia Supreme Court Rule 1A:1 permits admission on motion of qualifiedlawyers who had been admitted to practice in another state. This rule was designed as an ameliorative provision for those lawyers who had previously practiced in another jurisdiction and who wanted to become new residents of Virginia. The rule required, among other things, reciprocity between states; the other jurisdiction must admit Virginia's attorneys without examination. As a part of the procedure, the Virginia Supreme Court stipulated that the applicant:
(a) Is a proper person to practice law, (b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination, (c) Has become a permanent resident of the Commonwealth,(d) Intends to practice full-time as a member of the Virginia bar.
Friedman offered her arguments in a letter accompanying her application saying that she would practice full-time as a member of the Virginia bar and thatshe would keep informed of changes in the local law. Stating that her petition as a nonresident for admission to the bar, on motion, was under the protection of the Privileges and Immunities Clause of Article IV, 2, of the FederalConstitution, she also referred to the U.S. Supreme Court's decision in Supreme Court of New Hampshire v. Piper (1985). However, Friedman's requestwas denied on the grounds that she was no longer a resident of Virginia. Therationale for denial by the clerk of the Supreme Court of Virginia stated that the court had concluded that the U.S. Supreme Court's decision in Piper was not applicable to the "discretionary" residence requirement of the Virginia rule. (Virginia had "discretionary" freedom to choose to apply the residency requirement as a condition of admission by reciprocity.)
The case of Supreme Court of New Hampshire v. Piper (1985) invalidateda state residency requirement for admission to practice, holding that it violated the Privileges and Immunities Clause. The clause forbade any discrimination against residents of other states in favor of its own and was intended to create a national economic union, but it also protected other interests relating to the union (e.g., in Doe v. Bolton [1973], the right to seek medical care). The clause is self-executory: its enforcement is dependent uponthe judicial process. In deciding the Piper case, the U.S. Supreme Court used a previously established, two-pronged test which was intended for residency restrictions that may have limited privileges and immunities protections. The test examined if the activity in question was essential for the interest of the nation and whether restrictions bore a substantial relationship to the objectives of a state. In the Piper case, the Court also recognized the right to practice law as an essential activity.
Higher Courts' Decisions
In the U.S. District Court for the Eastern District of Virginia, Friedman filed suit against the Supreme Court of Virginia and the clerk of the court. Sheclaimed that Virginia's residency requirement violated the Privileges and Immunities Clause. The district court ruled in Friedman's favor, and the Courtof Appeals for the Fourth Circuit affirmed.
In the trial before the district court, the attorney for the Supreme Court ofVirginia and its clerk reasoned that the Privileges and Immunities Clause was not violated by the residency requirement of the Virginia rule as long as all applicants were allowed to gain admission to the bar by passing the bar examination. The appellant's next argument was that the residency requirement,together with the full-time practice requirement, was designed to guarantee that a lawyer admitted on motion would be as committed to service and as familiar with Virginia law as an attorney who entered the Virginia bar by examination.
The district court disagreed with the appellant's argument because the Privileges and Immunities Clause was implicated whenever a state did not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents. Moreover, the court reasoned that it was mere speculation that residents would respect their commitments to practice full time in Virginia more than nonresidents. The state, without violating constitutional protections, could also further its interest in having lawyers well-acquainted with legal developments by using other equally effective means,such as the requirement that applicants maintain an office in Virginia. Referring to the two-pronged test used in Supreme Court of New Hampshire v. Piper,the Court concluded that there was not substantial reason for discrimination, nor did the discrimination bear a substantial relationship to the objectives of the state. Subsequently, the lower court's decision was unanimously affirmed by the court of appeals. Dissatisfied with that decision, the Supreme Court of Virginia and its clerk appealed again and the U.S. Supreme Courtagreed to hear their case.
Higher Courts' Decisions Affirmed
After considering previous court decisions and reviewing arguments, the U.S.Supreme Court, on a 7-2 vote, affirmed the decision of the district court andthe court of appeals, holding that Virginia's residency requirement for admission on motion to the state's bar violated the Privileges and Immunities Clause. Since this clause of the Constitution is enforced only through the judicial process, the Court employed a two-pronged test to resolve the case. All appellant's arguments were carefully considered to determine if they satisfiedthe two inquiries of the test. The action in question was considered of national and state interests.
Appellants contended that the residency requirement of the Virginia rule offended neither part of the two-pronged test; neither was discretionary admission provided by this rule a privilege protected by the Privileges and Immunities Clause. First, admission on motion was not the only means of entering the Virginia Bar since an applicant, without regard to residence, could gain admission by passing the bar examination. Second, the privilege of admission on motion was not protected by the clause because the state could, without constitutional violation, require all applicants to pass an examination.
Writing for the majority, Justice Kennedy decided that neither argument was persuasive. Kennedy wrote that after considering Supreme Court precedents, thepractice of law was sufficiently basic to the national economy, and therefore, with regard to the first question of the two-pronged test, it was protected by the clause. Kennedy pointed out that Supreme Court of Virginia's argument contradicted precedence, notably, Supreme Court of New Hampshire v. Piper. In that case, the rule was struck down even though it had not resultedin the total exclusion of nonresidents from the practice of law in the state. The appellant's second argument was equally irrelevant since "a state's abstract authority to require from . . . resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held toshield the discriminatory distinction from the reach of the Privileges and Immunities Clause." While Justice Kennedy conceded that the Privileges and Immunities Clause was not an absolute where substantial reasons for discrimination existed, he felt the degree of discrimination enforced by the Supreme Courtof Virginia bore a close relation to such reasons.
The majority opinion ruled that the Supreme Court of Virginia's two main justifications for the residence requirement did not sufficiently satisfy the two-pronged test. The Court held that the ability or willingness of a nonresident attorney to respect the bar and further its interests to the same degree asa resident lawyer did not depend on whether s/he entered the bar on motion or on examination. Kennedy wrote that it was indisputable that Friedman had asubstantial stake in the practice of law in Virginia and there appeared to beno reason why she would not "remain abreast of changes in the law." As to Virginia's justified concern to have its attorneys abreast of legal developments, the Court noted that there were alternative means to achieve this end without infringing constitutional protections. For example, Kennedy affirmed thecourt of appeals explanation that the requirement for applicants to maintainan office in Virginia was equally effective as the residency restriction andtherefore rendered the residency restriction largely redundant.
Chief Justice Rehnquist and Justice Scalia felt that, with respect to earlierprecedents, the Privileges and Immunities Clause did not "require States toignore residency when admitting lawyers to practice in the way that they mustignore residency when licensing traders in foreign goods . . . " (Ward v.Maryland. [1871]. In addition, Rehnquist wrote that Virginia's rule allowing admission on motion was intended to help lawyers who would become new residents of Virginia. This rule enabled them to gain admission to the Virginiabar on the basis of their previous practice. In Rehnquist's opinion, the Court's decision penalized Virginia for that, and he expressed his concern thatVirginia might decide to eliminate admission on motion altogether.
Impact
The U.S. Supreme Court's ruling affirmed a new standard of implementation ofthe Privileges and Immunities Clause of Article IV, 2, of the Constitution. More importantly, the decision reestablished precedence set in Supreme Court of New Hampshire v. Piper.The right to practice law was recognized as an activity essential for the interest of the nation and therefore protected by the Privileges and Immunities Clause. In turn, by holding to the two-pronged test for the right to pursue a licensed profession, this case firmly established a standard that may be applied to other licensed professions, such as medicine, if it is estimated to be essential to national interests.
Related Cases
- Ward v. Maryland, 12 Wall 418 (1871).
- Doe v. Bolton, 410 U.S. 179 (1973).
- Baldwin v. Montana Fish & Game Comm., 436 U.S. 371 (1978).
- Hicklin v. Orbeck, 437 U.S. 518 (1978).
- Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
Privileges and Immunities Clause: Residency Requirements
Residency is the length of time a person must stay in a particular area to enjoy certain legal protections or benefits. States have frequently sought to limit the amount of benefits or protections a person new to the state, or nota resident, might receive. For some rights, such as to file suit in state courts, a person must simply prove they have sufficient interests in a state, such as through business. However, durational residency requirements may actually demand a person actually live in the state for a specified period of time.
When residency requirements are applied to fundamental constitutional rights,such as welfare and public housing benefits, basic medical care, and voting,the state must demonstrate a strong compelling interest. Often such requirements violate the Equal Protection Clause by restricting the fundamental constitutional right for the poor to travel between states as others do. For otherrights or privileges, including to run for public office, practice a profession, government employment, attend certain public schools, and initiate a lawsuit, the state must only demonstrate a reasonable basis for the restriction.By the 1990s most states had dropped durational requirements for voting andenacted motor-voter laws, meaning a person can vote when they apply for a drivers license.
Sources
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.
Further Readings
- Illinois State Bar Association. "ISBA Advisory Opinion on Professional Conduct." Courts Bulletin and Opinions. 1997. http://www.illinoisbar.org/CourtsBull/EthicsOpinions/92-06.html.
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