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SUPREME COURT NEW HAMPSHIRE v. PIPER

decided: March 4, 1985.

SUPREME COURT OF NEW HAMPSHIRE
v.
PIPER



APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Stevens, and O'connor, JJ., joined. White, J., filed an opinion concurring in the result, post, p. 288. Rehnquist, J., filed a dissenting opinion, post, p. 289.

Author: Powell

[ 470 U.S. Page 275]

 JUSTICE POWELL delivered the opinion of the Court.

The Rules of the Supreme Court of New Hampshire limit bar admission to state residents. We here consider whether this restriction violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2.

I

A

Kathryn Piper lives in Lower Waterford, Vermont, about 400 yards from the New Hampshire border. In 1979, she

[ 470 U.S. Page 276]

     applied to take the February 1980 New Hampshire bar examination. Piper submitted with her application a statement of intent to become a New Hampshire resident. Following an investigation, the Board of Bar Examiners found that Piper was of good moral character and met the other requirements for admission. She was allowed to take, and passed, the examination. Piper was informed by the Board that she would have to establish a home address in New Hampshire prior to being sworn in.

On May 7, 1980, Piper requested from the Clerk of the New Hampshire Supreme Court a dispensation from the residency requirement. Although she had a "possible job" with a lawyer in Littleton, New Hampshire, Piper stated that becoming a resident of New Hampshire would be inconvenient. Her house in Vermont was secured by a mortgage with a favorable interest rate, and she and her husband recently had become parents. According to Piper, these "problems peculiar to [her] situation . . . [warranted] that an exception be made." Letter from Appellee to Ralph H. Wood, Esq., Clerk of N. H. Supreme Court, App. 13.

On May 13, 1980, the Clerk informed Piper that her request had been denied. She then formally petitioned the New Hampshire Supreme Court for permission to become a member of the bar. She asserted that she was well qualified and that her "situation [was] sufficiently unique that the granting of an exception . . . [would] not result in the setting of any undesired precedent." Letter of Nov. 8, 1980, from Appellee to Hon. William A. Grimes, then Chief Justice of the N. H. Supreme Court, App. 15. The Supreme Court denied Piper's formal request on December 31, 1980.

B

On March 22, 1982, Piper filed this action in the United States District Court for the District of New Hampshire. She named as defendants the State Supreme Court, its five

[ 470 U.S. Page 277]

     Justices, and its Clerk. She alleged that Rule 42 of the New Hampshire Supreme Court, that excludes nonresidents from the bar,*fn1 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution.*fn2

On May 17, 1982, the District Court granted Piper's motion for summary judgment. 539 F.Supp. 1064. The court first stated that the opportunity to practice law is a "fundamental" right within the meaning of Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978). It then found that Piper had been denied this right in the absence of a "substantial reason," 539 F.Supp., at 1072, and that Rule 42 was not "closely tailored" to achieve its intended goals, id., at 1073. The court therefore concluded that New Hampshire's residency requirement violated the Privileges and Immunities Clause.*fn3

[ 470 U.S. Page 278]

     An evenly divided Court of Appeals for the First Circuit, sitting en banc, affirmed the judgment in favor of Piper. 723 F.2d 110 (1983).*fn4 The prevailing judges held that Rule 42 violated the Privileges and Immunities Clause. After finding that Art. IV, § 2, protects an individual's right to "'pursue a livelihood in a State other than his own,'" id., at 112, (quoting Baldwin v. Montana Fish & Game Comm'n, supra, at 386), the judges applied the two-part test set forth in Hicklin v. Orbeck, 437 U.S. 518 (1978). They concluded that there was no "substantial reason" for the different treatment of nonresidents and that the challenged discrimination bore no "substantial relationship" to the State's objectives.*fn5 See id., at 525-527.

The dissenting judges found that the New Hampshire Supreme Court's residency requirement did not violate the Privileges and Immunities Clause. While recognizing that Rule 42 may "serve the less than commendable purpose of insulating New Hampshire practitioners from out-of-state competition," 723 F.2d, at 119, they found several "substantial" reasons to justify discrimination against nonresidents. If the residency requirement were abolished, "large law firms in distant states" might exert significant influence over the state bar. Ibid. These nonresident lawyers would be unfamiliar with local customs and would be less likely to perform pro bono work within the State. The dissenting judges

[ 470 U.S. Page 279]

     further believed the District Court's judgment was inconsistent with our decision in Leis v. Flynt, 439 U.S. 438 (1979) (per curiam).

The Supreme Court of New Hampshire filed a timely notice of appeal, and we noted probable jurisdiction. 466 U.S. 949 (1984). We now affirm the judgment of the court below.

II

A

Article IV, § 2, of the Constitution provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."*fn6 This Clause was intended to "fuse into one Nation a collection of independent, sovereign States." Toomer v. Witsell, 334 U.S. 385, 395 (1948). Recognizing this purpose, we have held that it is "[only] with respect to those 'privileges' and 'immunities' bearing on the vitality of the Nation as a single entity" that a State must accord residents and nonresidents equal treatment. Baldwin v. Montana Fish & Game Comm'n, supra, at 383. In Baldwin, for example, we concluded that a State may charge a nonresident more than it charges a resident for the same elk-hunting license. Because elk-hunting is "recreation" rather than a "means of a livelihood," we found that the right to a hunting license was not "fundamental" to the promotion of interstate harmony. 436 U.S., at 388.

Derived, like the Commerce Clause, from the fourth of the Articles of Confederation,*fn7 the Privileges and Immunities

[ 470 U.S. Page 280]

     Clause was intended to create a national economic union.*fn8 It is therefore not surprising that this Court repeatedly has found that "one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State." Toomer v. Witsell, supra, at 396. In Ward v. Maryland, 12 Wall. 418 (1871), the Court invalidated a statute under which nonresidents were required to pay $300 per year for a license to trade in goods not manufactured in Maryland, while resident traders paid a fee varying from $12 to $150. Similarly, in Toomer, supra, the Court held that nonresident fishermen could not be required to pay a license fee of $2,500 for each shrimp boat owned when residents were charged only $25 per boat. Finally, in Hicklin v. Orbeck, 437 ...


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