In re Gordon, 48 N.Y.2d 266 (1979)
A state’s requirement that an applicant for bar admission be a resident for a specified period immediately preceding application violates the Privileges and Immunities Clause of the U.S. Constitution.
Summary
The New York Court of Appeals held that CPLR 9406(2), which mandated a six-month residency period immediately before applying for bar admission, was unconstitutional. The court reasoned that this requirement violated the Privileges and Immunities Clause by discriminating against non-residents without a substantial justification. The court emphasized that the right to pursue one’s occupation free from discriminatory interference is a fundamental right and that the state’s interests could be served by less restrictive means.
Facts
Appellant, a North Carolina resident, graduated from the University of Virginia Law School and was a member of the Virginia and North Carolina bars. He worked in New York City as in-house counsel for Western Electric Company for over two years. After passing the New York State Bar Examination, he was unexpectedly transferred to North Carolina. He applied for admission to the New York bar, believing his prior residency qualified him. The Committee on Character and Fitness deferred action due to his North Carolina residency. He then challenged the residency requirement.
Procedural History
Appellant petitioned the Appellate Division for admission to the bar without the Committee’s certification. The Appellate Division denied the application, upholding the constitutionality of CPLR 9406(2). The New York Court of Appeals granted review.
Issue(s)
- Whether CPLR 9406(2), requiring a six-month residency immediately preceding application for bar admission, violates the Privileges and Immunities Clause of Article IV of the U.S. Constitution.
Holding
- Yes, because the residency requirement unduly discriminates against non-residents seeking to practice law in New York without a sufficient justification, thus violating the Privileges and Immunities Clause.
Court’s Reasoning
The Court of Appeals reasoned that the Privileges and Immunities Clause prevents a state from discriminating against non-residents to further its parochial interests. While states can differentiate between residents and non-residents in matters of sovereignty, such as voting, the practice of law falls within the scope of commercial activities protected by the Clause. The court stated, “the right to pursue one’s chosen occupation free from discriminatory interference is the very essence of the personal freedom that the privileges and immunities clause was intended to secure.”
The court found that CPLR 9406(2) invidiously discriminated against non-residents by forcing them to relinquish their established practices and residences to meet the residency requirement. The court applied a two-pronged test: first, whether non-citizens constitute a peculiar source of evil at which the statute is aimed, and second, whether the means adopted are narrowly drawn and are the least restrictive alternatives available. While New York has a legitimate interest in ensuring its bar members possess knowledge, character, and fitness, the residency requirement did not further these goals. There was no evidence that nonresident practitioners would create a particular evil. The court noted, “There is nothing in the record to indicate that an influx of nonresident practitioners would create, or even threaten to create, a particular evil [within the competence of the State] to address.”
The court rejected the argument that residency was necessary for bar admission authorities to evaluate character, noting applicants are personally interviewed. It also dismissed the claim that only resident attorneys are amenable to court supervision, suggesting less restrictive alternatives like requiring non-resident attorneys to appoint an agent for service of process. The court concluded that the state’s obligation to ensure competency and rectitude could not justify infringing on constitutionally protected rights. The court stated, “By denying otherwise qualified applicants their right to practice their chosen occupation based solely on their State of residence, CPLR 9406 (subd 2) works an unconstitutional discrimination against nonresidents.”