Supreme Court of New Hampshire v. Piper

Appellant
Supreme Court of New Hampshire
Appellee
Kathryn A. Piper
Appellant's Claim
That the New Hampshire state law limiting admission to the bar to residents did not violate the Constitution's Privileges and Immunities Clause.
Chief Lawyer for Appellant
Martin L. Gross
Chief Lawyer for Appellee
Jon Meyer
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr. (writing for the Court), John Paul Stevens, Byron R. White
Justices Dissenting
William H. Rehnquist
Place
Washington, D.C.
Date of Decision
4 March 1985
Decision
The Supreme Court affirmed the judgment of the Court of Appeals for the FirstCircuit that New Hampshire's limiting of bar admission to state residents violated the Privileges and Immunities Clause.
Significance
The practice of law was held to be a business like any other, protected by the federal guarantee against state-to-state discrimination.
Rights of Non-residents
The Supreme Court of New Hampshire v. Piper was an important states' rights case. At issue were the individual states' abilities to grant privileges to residents that were denied to non-residents. The Supreme Court upheld its ruling that a state must show substantial reason for any difference in treatment between residents and non-residents. Although the New Hampshire SupremeCourt argued that such reasons were present in the case of the practice of law, the U.S. Supreme Court disagreed.
New Hampshire rules excluded non-residents from its bar. Kathryn Piper, a resident of Vermont who lived about four hundred yards from the New Hampshire border, received permission to take the New Hampshire bar exam by filing a statement of her intent to become a New Hampshire resident. After passing the bar, Piper was not allowed to swear in, and filed an application for an exception from the residency requirement. The New Hampshire Supreme Court denied herrequest, and she then filed an action in federal district court, claiming that the residency requirement violated Article 4, Section 2 of the United States Constitution.
The Privileges and Immunities of United States Citizens
Article 4, Section 2 includes a section known as the Privileges and Immunities Clause. One of several items intended at the nation's formation to create anational economic union, the Privileges and Immunities Clause gave citizensof one state the right to conduct business in another state on equal terms with that state's citizens. The clause was not used as commonly as the CommerceClause, which protects interstate commerce. Although Alexander Hamilton, inThe Federalist, called the idea that no state could discriminate against the citizens of another state "the basis of the Union," the Supreme Courthad largely interpreted the Privileges and Immunities Clause as meaning thatstates needed to show good reason in order to discriminate against non-residents. Nonetheless, the district court and the court of appeals both affirmed that the residency requirement denied Piper her rights under the Privileges and Immunities Clause, finding that the opportunity to practice law was a "fundamental right" that was being denied her.
The New Hampshire Supreme Court argued that there were substantive reasons for the residency requirement. Nonresidents, it argued, would have fewer reasons than residents to familiarize themselves with local rules and procedures, and would be less likely "to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State." TheU.S. Supreme Court, like the two courts preceding it, determined that thesewere not substantial enough reasons for discrimination. The practice of law,wrote Justice Powell in the Court opinion, was not an exercise of state powerthat justified a residency requirement. Furthermore, his opinion suggested that there were positive benefits to having out-of-state residents practice law in a state. For instance, they might be more likely to represent people raising unpopular federal claims.
Variety of Opinions
The decision was not unanimous. Justice White, while concurring in the result, filed an opinion in which he argued that the residency requirement should be excepted in Piper's particular case, since she lived so near New Hampshireand "would be indistinguishable from other New Hampshire lawyers." But he also expressed his opinion that the case should be decided on those grounds alone. The Court need not, according to White, "decide the facial validity of theNew Hampshire residency requirement." He thus agreed with the result of thedecision, but not every aspect of Powell's opinion.
Justice Rehnquist filed a dissenting opinion, arguing that the practice of law was different from the practice of other professions. The practice of law,he asserted, was "non-national," since laws themselves were created locally and intended to respond to local interests. Rehnquist summarized:

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 todecide that those people who have been trained to analyze law and policy arebetter equipped to write those state laws and adjudicate cases arising underthem. 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 fromwhich its lawmakers can be drawn.

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• Hicklin v. Orbeck, 437 U.S. 518 (1978).