Nat'l Ass'n for the Advancement of Multijurisdiction Practice v. Castille

799 F.3d 216

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF MULTIJURISDICTION PRACTICE (NAAMJP); Richard H. Rosario ; Paul J. Riviere, Appellants

v.Hon. Chief Justice Ronald D. CASTILLE; Hon. Thomas G. Saylor; Hon. J. Michael Eakin; Hon. Max Baer ; Hon. Debra McCloskey Todd; Hon. Seamus P. McCaffery; Hon. Correale F. Stevens.

No. 15–1481.

United States Court of Appeals, Third Circuit.

LAR 34.1(a) June 25, 2015.

Opinion filed: Aug. 26, 2015.

Joseph R. Giannini, Esq., Los Angeles, CA, for Appellants.

Michael Daley, Esq., Supreme Court of Pennsylvania, Philadelphia, PA, for Appellees.

Before: CHAGARES, KRAUSE, and BARRY, Circuit Judges.

OPINION OF THE COURT

KRAUSE, Circuit Judge.

We consider here a constitutional challenge to Pennsylvania Bar Admission Rule 204, which allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state's bar exam. In a thorough and well-reasoned opinion, the District Court upheld Rule 204, and we will affirm.

I. Background

Rule 204 allows an attorney to join the Pennsylvania bar by motion, without taking the Pennsylvania bar exam, if the attorney has graduated from an accredited law school, has either passed the bar exam or practiced law for the “major portion” of five of the preceding seven years in a reciprocal state, remains a member in good standing of every bar to which the attorney has been admitted, obtains a favorable moral character determination in Pennsylvania, achieves a sufficient score on the Multistate Professional Responsibility Exam, and has not previously failed the Pennsylvania bar exam. See Pa. Bar Admission Rule 204(1)-(8). Thirty-eight states and the District of Columbia have reciprocity agreements with Pennsylvania. In addition, Pennsylvania allows attorneys admitted in any state to apply for pro hac vice admission, i.e., to be “specially admitted to the bar of th[e] Commonwealth for purposes limited to a particular case.” Pa. Bar Admission Rule 301.

Appellants Richard Rosario, Paul Riviere, and the National Association for the Advancement of Multijurisdictional Practice (“NAAMJP”) filed this suit against Appellees, who are Justices of the Pennsylvania Supreme Court responsible for promulgating Rule 204. Rosario graduated from an accredited law school in Maryland and is admitted to practice law in Maryland and Washington, D.C. He applied for admission to the Pennsylvania bar but was rejected because Maryland is not a reciprocal state and because he had not taken the District of Columbia bar exam or devoted the requisite amount of time to practicing law there. Riviere is a member of the New Jersey bar, another non-reciprocal state. He asserts that he wants to apply for reciprocal admission in Pennsylvania but has not because he would be rejected. Both Rosario and Riviere are members of NAAMJP, an organization dedicated to extending reciprocal bar admission to additional states.

Appellants contend Rule 204 violates the Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment, the First Amendment, the Privileges and Immunities Clause of Article IV, and the Dormant Commerce Clause. The District Court granted summary judgment for Appellees, and Appellants filed a timely appeal.¹

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Gonzalez v. Sec'y of Dep't of Homeland Sec., 678 F.3d 254, 257 (3d Cir.2012).

III. Discussion

A. Fourteenth Amendment

We begin with Appellants' argument that Rule 204 violates the Fourteenth Amendment's Equal Protection and Privileges or Immunities Clauses. We confronted a similar challenge in Schumacher v. Nix, 965 F.2d 1262 (3d Cir.1992). There, we reviewed Pennsylvania Bar Admission Rule 203, which permits graduates of unaccredited law schools to sit for the Pennsylvania bar exam if they are members of the bar of, and have practiced law for five years in, a reciprocal state, but not if their admission and five years of practice are in a non-reciprocal state. Id. at 1264.

The plaintiffs in Schumacher graduated from an unaccredited California law school, passed the California bar exam, practiced law in California for five years, and remained members in good standing of the California bar, but because California is a nonreciprocal state, the plaintiffs were ineligible to sit for the Pennsylvania bar exam. They argued that Rule 203 violated the Equal Protection Clause because it “substantially interfere[d] with their fundamental right to interstate travel by discouraging them from moving to Pennsylvania” and urged us to apply strict scrutiny, although they also argued that Rule 203 could not survive rational basis review. Id. at 1265. We rejected both contentions, concluding that rational basis review applied because Rule 203 “neither establishes a classification based on residency nor erects a barrier to migration,” and that Rule 203 passed that review because “Pennsylvania has a legitimate interest in securing mutual treatment for ... its attorneys seeking admission to the bars of other states.” Id. at 1268, 1272. “By allowing attorneys who are graduates of unaccredited law schools from reciprocal states to sit for its bar examination,” we observed, “Pennsylvania may entice states to enter into reciprocal agreements with it.”Id. at 1272.

We reach the same conclusion here. Rule 204 does not classify attorneys based on residency, but rather, their state of bar admission, and it does not erect a barrier to migration. See id. at 1267–68 (“Surely, the Rule has some deterrent effect on nonresident attorneys who wish to migrate to Pennsylvania but choose not to because they are ineligible to sit for the Pennsylvania bar examination. However, the Constitution does not guarantee that citizens of State A may move to State B and enjoy the same privileges they did as citizens of State A, only that citizens of State A may move to State B and be treated on similar terms as the citizens of State B.”). It also does not classify applicants based upon “inherently suspect distinctions such as race, religion, or alienage.” Id. at 1266 (internal quotation mark omitted). As a result, Rule 204 is subject to rational basis review, and, like Rule 203, it furthers Pennsylvania's legitimate interest in securing favorable treatment for attorneys admitted in Pennsylvania if and when they seek to join the bars of other states (which, in turn, might motivate more attorneys to seek admission in Pennsylvania, increasing access to legal services for citizens of the Commonwealth). We thus reject Appellants' Equal Protection Clause challenge, and, for the same reasons, we reject their Fourteenth Amendment Privileges or Immunities Clause challenge. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir.2013) (citing Schumacher, 965 F.2d at 1266 ) (reviewing Fourteenth Amendment Equal Protection and Privileges or Immunities claims “under the same standard”).

B. First Amendment

Appellants next argue that Rule 204 infringes upon various rights protected by the First Amendment, including free speech, free association, and the right to petition.

1. Freedom of Speech

We must first determine what level of scrutiny applies to the purported restriction on speech. Appellants contend Rule 204 constitutes content and viewpoint discrimination, which are both, as a general matter, subject to strict scrutiny. See Startzell v. City of Phila., 533 F.3d 183, 193 (3d Cir.2008). They also argue that Rule 204 is an unlawful restriction on professional speech, seeking to analogize it to the law we confronted in King v. Governor of New Jersey, 767 F.3d 216 (3d Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 2048, 191 L.Ed.2d 955 (2015). King involved a challenge to a New Jersey statute prohibiting licensed counselors from engaging in “sexual orientation change efforts” with a client under the age of eighteen. Id. at 220. While we upheld the statute, we concluded such counseling constituted professional speech and explained that “a prohibition of professional speech is permissible only if it ‘directly advances' the State's ‘substantial’ interest in protecting clients from ineffective or harmful professional services, and is ‘not more extensive than necessary to serve that interest.’ ” Id. at 235 (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) ).

Appellees ask us to instead treat Rule 204 as a time, place, and manner restriction on speech, as the Ninth Circuit did in a case related to this one involving an Arizona rule identical to Rule 204. See Nat'l Ass'n for the Advancement of Multijurisdictional Practice v. Berch, 773 F.3d 1037, 1047 (9th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 2374, 192 L.Ed.2d 146 (2015). Such restrictions are valid provided “[1] [that] the restrictions are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication.” Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 388 (3d Cir.2010) (first, third, and fourth alterations in original) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ) (internal quotation marks omitted).

We disagree with both parties' characterizations. First, Rule 204 does not discriminate on the basis of the subject matter or viewpoint of any bar applicant's speech, the area of law an applicant would practice, or the clients an applicant would represent. In fact, nothing in the record suggests that...