Clement v. Durban

32 N.Y.3d 337

115 N.E.3d 614

91 N.Y.S.3d 342

Charmaine CLEMENT, Appellant,

v.Thomas DURBAN, et al., Respondents.

No. 118

Court of Appeals of New York.

November 14, 2018

The Berkman Law Office, LLC, Brooklyn (Meir Katz, of the Maryland bar, admitted pro hac vice, and Robert J. Tolchin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York City (MacKenzie Fillow, Richard Dearing and Devin Slack of counsel), for respondents.

OPINION OF THE COURT

FEINMAN, J.

New York's longstanding security for costs provisions treat resident and nonresident litigants differently. This appeal calls for us to decide whether, as a result of this different treatment, CPLR 8501(a) and 8503 violate the Privileges and Immunities Clause set forth in article IV, section 2 of the United States Constitution (Privileges and Immunities Clause). We conclude that they do not.

I.

When plaintiff commenced this personal injury action, she was a New York resident. Plaintiff then relocated to Georgia, prompting defendants to move, pursuant to CPLR 8501(a) and 8503, for an order compelling plaintiff—a nonresident at the time the motion was made—to post a minimum of $500 security for costs in the event she lost the case (see CPLR 8101 ). Defendants also requested a stay of the proceedings pursuant to CPLR 8502 until plaintiff complied with the order. In opposition, plaintiff argued that CPLR 8501(a) and 8503 were unconstitutional because they violate the Privileges and Immunities Clause of the Federal Constitution¹ by impairing nonresident plaintiffs' fundamental right of access to the courts.²

Supreme Court granted defendants' motion, opining that although access to the courts is a fundamental right protectable under the Privileges and Immunities Clause, CPLR 8501(a) and 8503 do not bar access to the courts (2013 WL 12182302, at *2 [Sup. Ct., Kings County, Sept 9, 2013, No. 8029/2011 (Trial Order) ] ). Supreme Court further stated that security for costs provisions are common nationwide ( id. ).

The Appellate Division unanimously affirmed. The court held that CPLR article 85 satisfied the standard set forth by the United States Supreme Court in Canadian Northern R.R. Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920), and re-affirmed in McBurney v. Young, 569 U.S. 221, 133 S.Ct. 1709, 185 L.Ed.2d 758 (2013), that nonresidents must be given "access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights [they] may have" ( Eggen, 252 U.S. at 562, 40 S.Ct. 402 ). On that basis, the Appellate Division held that "the challenged statutory provisions do not deprive noncitizens^{[3 ]} of New York of reasonable and adequate access to New York courts" ( Clement v. Durban, 147 A.D.3d 39, 44, 43 N.Y.S.3d 515 [2d Dept. 2016] ). The Appellate Division granted plaintiff leave to appeal to this Court, certifying the question as to whether its order was properly made ( 2017 N.Y. Slip Op 73199[U], 2017 WL 1900870 [2d Dept. 2017] ). For the reasons which follow, we now affirm.

II.

A.

The Privileges and Immunities Clause, art. IV, sec. 2 of the Federal Constitution

The Privileges and Immunities Clause is the preeminent constitutional directive "to constitute the citizens of the United States [as] one people" ( Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 57 L.Ed.2d 397 [1978] [internal quotation marks and citation omitted] ). In keeping with that goal, the Supreme Court has interpreted the clause to require "the State [to] treat all citizens, resident and nonresident, equally" and applies to only "those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity" ( Baldwin v. Fish & Game Commn. of Montana, 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354 [1978] ). The Supreme Court has identified certain "fundamental" privileges protected under the Privileges and Immunities Clause, which include "[nonresidents'] pursuit of common callings within the State; in the ownership and disposition of privately held property within the State; and in access to the courts of the State" ( id. [internal citations omitted]; see also Blake v. McClung, 172 U.S. 239, 249, 19 S.Ct. 165, 43 L.Ed. 432 [1898] [emphasizing the essential importance of "(t)he right of a citizen of one state ... to institute and maintain actions of any kind in the courts of (any other) state"] ). Initially, the Court framed nonresidents' constitutional right to access to the courts broadly, declaring that "[t]he right to sue and defend in the courts .... must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens" ( Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 148, 149, 28 S.Ct. 34, 52 L.Ed. 143 [1907] ; see also Miles v. Illinois Cent. R.R. Co., 315 U.S. 698, 704, 62 S.Ct. 827, 86 L.Ed. 1129 [1942][prohibiting states from restricting their own citizens from litigating federal rights in other states' courts]; McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 234, 54 S.Ct. 690, 78 L.Ed. 1227 [1934] ).

Neither the Supreme Court nor this Court have insisted on equal treatment for nonresidents "to a drily logical extreme" ( Smith v. Loughman, 245 N.Y. 486, 493, 157 N.E. 753 [1927] [internal quotation marks and citation omitted]; see also Eggen, 252 U.S. at 562, 40 S.Ct. 402 [disparate terms of Minnesota borrowing statute impacting nonresidents were constitutionally permissible "even though they may not be technically and precisely the same in extent as those accorded to resident citizens"] ). The Supreme Court has made clear that "the privileges and immunities clause is not an absolute" ( Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 92 L.Ed. 1460 [1948] ; see also United Bldg. & Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of City of Camden, 465 U.S. 208, 218, 104 S.Ct. 1020, 79 L.Ed.2d 249 [1984] ["Not all forms of discrimination against citizens of other States are constitutionally suspect"]; City of New York v. State, 94 N.Y.2d 577, 593, 709 N.Y.S.2d 122, 730 N.E.2d 920 [2000] ). Rather, as the Supreme Court has explained, the Privileges and Immunities Clause prevents a state from imposing only "unreasonable" burdens on nonresidents, including with respect to access to the courts of the state (see e.g. Baldwin, 436 U.S. at 383, 98 S.Ct. 1852 ). In the specific context of access to the courts, the Supreme Court has held that "[t]he Privileges and Immunities Clause does not require States to erase any distinction between citizens and non-citizens that might conceivably give state citizens some detectable litigation advantage" ( McBurney, 569 U.S. at 231, 133 S.Ct. 1709 ).

Indeed, a state is not prohibited from using "state citizenship or residency ... to distinguish among persons" ( Baldwin, 436 U.S. at 383, 98 S.Ct. 1852 ) so long as "there are perfectly valid independent reasons for [the disparate treatment]" ( Toomer, 334 U.S. at 396, 68 S.Ct. 1156 ; see also Gordon v. Comm. on Character & Fitness, 48 N.Y.2d 266, 271, 422 N.Y.S.2d 641, 397 N.E.2d 1309 [1979] [noting that the clause was intended to prevent states "from discriminating against nonresidents merely to further (their) own parochial interests or those of (their) residents"] ). Therefore, any inquiry concerning a state's compliance with the Privileges and Immunities Clause "must ... be conducted with due regard for the principal [sic] that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures" ( Toomer, 334 U.S. at 396, 68 S.Ct. 1156 ; see also id. at 398, 68 S.Ct. 1156 [a valid independent reason includes "something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed"] ). For example, as this Court has clearly delineated, states may distinguish between residents and nonresidents where the purpose is to "withdraw[ ] an unfair advantage" that a nonresident would otherwise possess "with a view to the attainment in the end of a truer level of equality" ( Smith, 245 N.Y. at 493–494, 157 N.E. 753 ). Indeed, this Court has recognized, at least in dicta, that provisions requiring nonresident litigants to post security for costs are a prime example of disparate treatment that does not violate the Privileges and Immunities Clause (see Salla v. Monroe County, 48 N.Y.2d 514, 521, 423 N.Y.S.2d 878, 399 N.E.2d 909 [1979] ; Smith, 245 N.Y. at 493, 157 N.E. 753 ).

A two-step inquiry governs Privileges and Immunities Clause challenges to statutes providing for disparate treatment on the basis of residency. First, "the court must decide whether the [statute] burdens one of those privileges and immunities protected by the Clause" ( United Bldg. & Constr. Trades Council of Camden Cty., 465 U.S. at 218, 104 S.Ct. 1020 ). When the provision implicates access to the courts, the court must assess whether nonresidents are given access on "reasonable and adequate ... terms ... for the enforcing of any rights [they] may have" ( Eggen, 252 U.S. at 562, 40 S.Ct. 402 [opining that the "power (resides) in the courts ... to determine the adequacy and reasonableness of such terms"]; see McBurney, 569 U.S. at 232, 133 S.Ct. 1709 [citizen-only Virginia FOIA provision "d(id) not impermissibly burden noncitizens' ability to access (Virginia's) courts" because non-citizens had access to "most of the information that they sought" through other avenues] [emphasis added] ). If nonresidents are provided reasonable and adequate access to the courts, even if not on terms that "are technically and precisely the same in extent as those accorded to resident citizens," then the "constitutional requirement is satisfied," inasmuch as no fundamental right protected by the Privileges and Immunities Clause has been burdened ( McBurney, 569 U.S. at 231, 133 S.Ct. 1709 [internal quotation marks omitted] ).

Second, should the court determine that the plaintiff's exercise of a...