Supreme Court of Virginia v. Friedman

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 and the 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 satisfied the 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, the practice 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 resulted in 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 to shield 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 Court of 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 as a 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 a substantial stake in the practice of law in Virginia and there appeared to be no 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 the court of appeals explanation that the requirement for applicants to maintain an office in Virginia was equally effective as the residency restriction and therefore rendered the residency restriction largely redundant.

Chief Justice Rehnquist and Justice Scalia felt that, with respect to earlier precedents, the Privileges and Immunities Clause did not "require States to ignore residency when admitting lawyers to practice in the way that they must ignore 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 Virginia bar on the basis of their previous practice. In Rehnquist's opinion, the Court's decision penalized Virginia for that, and he expressed his concern that Virginia might decide to eliminate admission on motion altogether.