Barnard v. Thorstenn
489 U.S. 546, 1989 U.S. LEXIS 1241, 103 L. Ed. 2d 559 (1989)
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Rule of Law:
A territory's residency requirement for bar admission violates the Privileges and Immunities Clause of Article IV unless the territory demonstrates a substantial reason for the differential treatment of nonresidents and that the discrimination bears a substantial relationship to its objective, particularly when less restrictive means are available.
Facts:
- The District Court of the Virgin Islands had a rule, Local Rule 56(b), for admission to its bar.
- This rule required that an applicant must have resided in the Virgin Islands for at least one year immediately preceding admission.
- The rule also required that an applicant, if admitted, intend to continue to reside in and practice law in the Virgin Islands.
- This rule governed practice in both the District Court and the local territorial courts.
- Susan Esposito Thorstenn and Lloyd DeVos were attorneys in good standing in New York and New Jersey, practicing law in New York City.
- Neither Thorstenn nor DeVos resided in the Virgin Islands.
- In 1985, Thorstenn and DeVos applied to take the Virgin Islands bar examination.
- The Committee of Bar Examiners rejected their applications because they did not meet the residency requirements of Rule 56(b).
Procedural Posture:
- Susan Thorstenn and Lloyd DeVos sued Geoffrey Barnard, Chairman of the Committee of Bar Examiners, in the U.S. District Court for the Virgin Islands, challenging the constitutionality of the bar's residency requirements.
- The District Court granted summary judgment in favor of Barnard and the Virgin Islands Bar Association, upholding the residency rule.
- Thorstenn and DeVos appealed to the U.S. Court of Appeals for the Third Circuit.
- A three-judge panel of the Third Circuit reversed the District Court's decision.
- The Third Circuit then reheard the case en banc, and the full court affirmed the panel's decision to invalidate the residency requirements.
- The U.S. Supreme Court granted certiorari to review the judgment of the Court of Appeals.
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Issue:
Does a court rule requiring attorneys to reside in the Virgin Islands for one year prior to admission and to intend to continue residing there violate the Privileges and Immunities Clause of Article IV of the U.S. Constitution?
Opinions:
Majority - Justice Kennedy
Yes, the residency requirements of Rule 56(b) violate the Privileges and Immunities Clause. The practice of law is a protected privilege under Article IV, and a state or territory's discrimination against nonresidents is invalid unless it demonstrates both a substantial reason for the differential treatment and that the discrimination bears a substantial relationship to that objective. The Virgin Islands failed to meet this burden. Its justifications—including geographical isolation, heavy caseloads, difficulty in maintaining competence in local law, inadequate bar resources, and the need for attorneys to represent indigent defendants—were not substantial enough to warrant a complete exclusion of nonresidents. For each justification, less restrictive alternatives were available, such as requiring nonresidents to associate with local counsel, pay higher dues, or make arrangements for substitute counsel in indigent cases.
Dissenting - Chief Justice Rehnquist
No, the simple residency requirement may be valid, and the case should be remanded for further fact-finding. While the one-year durational residency requirement is likely invalid under the right to travel, the requirement of simple residency could be justified by the unique circumstances of legal practice in the Virgin Islands, which differ from mainland states. The dissent argues that the majority was wrong to decide the case on summary judgment because there were genuine factual disputes about the challenges cited by the Virgin Islands Bar. The case should have been sent back for a trial to determine if these unique circumstances provided a substantial reason for the residency rule.
Analysis:
This decision solidifies and extends the precedent set in Supreme Court of New Hampshire v. Piper, applying the Privileges and Immunities Clause to bar admission requirements in a U.S. territory. It significantly raises the bar for any jurisdiction attempting to justify residency requirements for the practice of law, signaling that practical difficulties like travel, court congestion, and administrative burdens are insufficient justifications. By systematically rejecting each of the territory's arguments and emphasizing the availability of less restrictive means, the Court has made it exceedingly difficult for any state or territory to maintain 'locals-only' legal practice rules.
