David C. Frazier v. Honorable Frederick J.R. Heebe

788 F.2d 1049

Opinions

POLITZ, Circuit Judge:

We are asked to review the rules regulating the admission of lawyers to the bar of the Eastern District of Louisiana. David C. Frazier appeals a judgment denying his petition for admission to the bar of that court. We affirm.

BACKGROUND

Frazier, a member in good standing of the bars of Louisiana¹ and Mississippi, resides and has his law office in Pascagoula, Mississippi. He is admitted to practice before the United States District Court for the Southern District of Mississippi, the United States Court of Appeals for the Eleventh Circuit, and this court. In April 1982, Frazier applied for admission to the bar of the Eastern District, candidly noting in his cover letter that he neither resided nor maintained an office in Louisiana as required by Rule 21.2 of the Eastern District’s local rules.² Frazier’s application was denied solely because of this fact.³

Frazier sought a writ of prohibition from this court. We remanded the case for entry of an appealable judgment and ordered that the petition for extraordinary relief be carried with the case. In re Frazier, No. 83-3015, unpublished order (Feb. 14, 1983). On remand, Frazier filed a complaint alleging that Eastern District Rules 21.2 and 23.3.1⁴ were unconstitutional both on their face and as applied, being in contravention of the commerce clause, the full faith and credit clause, the privileges and immunities clause of Article IV, the first amendment, and the equal protection component of the fifth amendment due process clause. The case was tried to Senior District Judge Edwin F. Hunter of the Western District of Louisiana, sitting by special designation. After a bench trial, Judge Hunter denied Frazier’s petition for extraordinary relief and dismissed his suit. The reasons and reasoning assigned are comprehensive and scholarly. Matter of Frazier, 594 F.Supp. 1173 (E.D.La.1984).

On appeal, Frazier urges only the equal protection and privileges and immunities claims. If we find the challenged rules constitutional, he alternatively asks that we exercise our supervisory jurisdiction over the district courts of this circuit and order his admission.

ANALYSIS

Frazier's constitutional attack is dual: the challenged rules abrogate his privileges and immunities as a citizen, and they violate the equal protection clause.

Privileges and Immunities

The privileges and immunities clause, Art. IV, § 2, cl. 1, limits the powers of a state to accord the fundamental rights of a citizen of another state a treatment different than that given its own citizens. See, e.g., Supreme Court of New Hampshire v. Piper, — U.S. -, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985); Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). This clause does not apply to the federal government and its officers.

Frazier maintains that in the interest of promoting interstate harmony the clause ought to be made applicable through the due process clause of the fifth amendment to rules adopted by local federal courts. We are not persuaded.

Federal judges are empowered to promulgate local rules of court, 28 U.S.C. §§ 1654 & 2071; Fed.R.Civ.P. 83; United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958), including rules respecting the admission of lawyers to practice before the court. E.g., Brown v. McGarr, 774 F.2d 777 (7th Cir.1985); Matter of Roberts, 682 F.2d 105 (3d Cir.1982); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968). By analogy to the commerce clause, which the privileges and immunities clause closely resembles, see, e.g., Tribe, American Constitutional Law § 6-33 at 411-12 n. 19 (1978); Sunstein, Naked Preferences and the Constitution, 84 Colum.L.Rev. 1689, 1710 (1984); see generally Varat, State “Citizenship” and Interstate Equality, 48 U.Chi.L.Rev. 487 (1981), pursuant to a specific grant of authority by Congress, federal officers may adopt policies and rules which discriminate against citizens of some states, and benefit citizens of others. Indeed, this distributive and allocative function between the states is the essence of the federal government. Frazier’s suggested distinction between “local” and “national” federal officers misperceives the basis for federal authority.

Many federal officers are “local” to the extent of geographical restraints on authority. The essence of the federal office, however, is its exercise on behalf of the entire nation, even though the authority is limited to a “local” area. The rules Frazier challenges were adopted pursuant to a congressional grant of authority. Frazier is a citizen of the relevant political community, the United States of America, with representation in its legislative body. He is not a powerless outsider in need of the protection of the privileges and immunities clause, and that clause provides him with neither a shield nor a lance.

Equal Protection

Frazier’s more significant constitutional challenge advances under the aegis of the equal protection component of the due process clause of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. , 98 L.Ed. 884 (1954). As with most equal protection assessments, the court’s first determination is the applicable level of scrutiny. Frazier urges that we apply either strict scrutiny or intermediate-level scrutiny in our constitutional balancing. We find neither appropriate.

When a law disadvantages a suspect class or impinges a fundamental right, we will examine that law through the magnifying glass of strict scrutiny. Frazier invokes both predicates. The first is manifestly inapplicable; Frazier is not a member of a suspect class. His assertion that his lack of political power as an out-of-state resident is akin to that of aliens or racial and national minorities, recognized suspect classes, is not persuasive. As a citizen, insofar as federal actions are concerned he is not an outsider lacking political power, as that concept is understood in the equal protection analysis. See generally Sun-stein, supra. As to the second factor, a right is not fundamental unless it is “explicitly or implicitly guaranteed by the Constitution.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973).⁵ We find no fundamental right implicated by the admission rules of the Eastern District. See Matter of Roberts, 682 F.2d 105 (3d Cir.1982). The rubrics of strict scrutiny have no application in our constitutional testing of the subject rules.

Nor is intermediate-level scrutiny, appropriate. See City of Cleburne v. Cleburne Living Center, Inc., — U.S.-, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Frazier is not burdened by an immutable trait and is not a member of a group traditionally subject to mistreatment. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). We do not find intermediate-level scrutiny applicable.

Having ruled out the strict and intermediate levels, there remains only the inquiry whether the rules are rationally related to a legitimate governmental purpose, the least demanding of the three standards. But see Cleburne, — U.S. at -, 105 S.Ct. at 3260, 87 L.Ed.2d at 327 (Stevens, J., concurring); Plyler, 457 U.S. at 230, 102 S.Ct. at 2401 (Marshall, J., concurring); Hutchinson, More Substantive Equal Protection? A Note on Plyler v. Doe, 1982 Sup.Ct.Rev. 167. Typically the “law” under examination will pass constitutional muster unless it creates a classification “whose relationship to an asserted goal is so attenutated as to render the distinction arbitrary or irrational. See Zo-bel v. Williams, 457 U.S. 55, 61-63 [102 S.Ct. 2309, 2313-14, 72 L.Ed.2d 672] (1982); United States Department of Agriculture v. Moreno, 413 U.S. 528, 535 [93 S.Ct. 2821, 2826, 37 L.Ed.2d 782] (1973).” Cleburne, — U.S. at —, 105 S.Ct. at 3257,87 L.Ed.2d at 324.

The stated and implicit governmental purpose served by the challenged rules is legitimate: the rules seek to foster the efficient and effective administration of justice. We must ascertain whether the relationship of the rules to that purpose is so attenuated that the rules are not rationally related to the purpose they ostensibly serve.

A review of the regulatory scheme established by the rules is critical to a determination of their validity. Rule 21.2 imposes two requirements on lawyers who seek admission to the bar of the Eastern District: (1) they must be members in good standing of the Louisiana bar, and (2) they must either reside or maintain a law office in Louisiana. Rule 21.3.1 provides the vehicle for ongoing enforcement of Rule 21.2, for, as amended, it requires the members of the bar of the Eastern District to certify annually that they continue to meet its requirements.

These rules do not prohibit lawyers who are not admitted in the Eastern District from practicing before that court. Rule 21.5 governs admissions pro hac vice, permitting a “member in good standing of the bar of any [federal] court ... or the highest court of any state” to be admitted on motion to participate in a particular case. The rule requires, however, that a lawyer admitted pro hac vice be associated with counsel who is a member of the bar of the Eastern District. The requirement that counsel admitted pro hac vice be affiliated with local counsel may be waived under Rule 21.6 if a party who is not a resident of the Eastern District “would suffer hardship by joinder of local counsel, and the obligations and duties of counsel in the particular litigation will be fulfilled.”

Frazier urges that the Eastern District’s regulatory scheme irrationally discriminates against members of the Louisiana bar who neither reside nor maintain an office in Louisiana, and thereby violates the fifth amendment’s equal protection component. We are not convinced. We find the rules reasonably related to their intended purpose.

The evidence before the district court included the testimony of judges Morey L. Sear and Veronica D. Wicker, magistrates Ingard O. Johannesen and Michaelle Wynne, and clerk of court Loretta Whyte, all of the Eastern District. Their testimony was of one voice: lawyers admitted pro hac vice, who neither reside nor maintain an office in Louisiana, fail to comply with the local rules and impede the efficient administration of justice more than members of the bar of the Eastern District. This criticism included non-resident members of the bar of Louisiana.

The experiences of the five witnesses in the functioning of the court in the Eastern District of Louisiana suggests that outside counsel frequently impose an additional burden on the efficient administration of a trial docket. Not being readily available, because of geographical separation from the court, is the principal difficulty noted.

We harbor no doubt that the rules are as overinclusive in lumping all non-residents together as they are underinclusive in lumping together all lawyers who reside or maintain offices in Louisiana.⁶ On the basis of the evidence, however, we conclude that the judges of the Eastern District acted in a reasonable manner in drawing the distinction.⁷ The record reflects no invidious, discriminatory or otherwise inappropriate basis for the rules.

Although Frazier may not be admitted to the bar of the Eastern District, he is not prohibited from practicing before that court. As the district court found, “applications for admission pro hac vice are granted as a matter of course in the Eastern District” and “Frazier would not be denied admission on this basis if he complied with Rule 21.5.” 594 F.Supp. at 1181. These findings are not challenged on appeal.⁸ Frazier insists that permitting his admission pro hoc vice is not sufficient to avoid his equal protection challenge because under Rule 21.5 one appearing pro kac vice must associate local counsel. Cf. Piper, — U.S. at - n. 2, 105 S.Ct. at 1275 n. 2, 84 L.Ed.2d at 209 n. 2. He claims that this association imposes a financial burden on the client, non-resident counsel, or both.

The requirement that local counsel be associated with an out-of-state lawyer appearing pro kac vice has been approved, albeit in dicta, by the Supreme Court, Piper, — U.S. at-, 105 S.Ct. at 1280, 84 L.Ed.2d at 215, and this court, Sanders v. Russell, 401 F.2d at 248. We find significant in this case the fact that Rule 21.6 allows the waiver of the local counsel requirement and, according to Judge Sear, this waiver is granted for “good cause,” such as a showing of “hardship to the litigant.”

We are persuaded that the regulatory scheme of the Eastern District bears sufficient rational relationship to that court’s goal of an efficient administration of justice. We are further persuaded that, in reality, Frazier’s ability to practice in the Eastern District is not inappropriately burdened by the rules.

Frazier next challenges the admission rules as applied to him. To succeed in this challenge he must show discriminatory application of the rules, i.e., that some members of the Louisiana bar who neither reside nor maintain an office in Louisiana have been admitted to the bar of the Eastern District. Frazier does not so contend; indeed, the evidence reflects no basis upon which such a contention could be made.

Supervisory Power

Finally, Frazier earnestly asks that we exercise our supervisory jurisdiction and either invalidate the rules or order him admitted. Typically we do not consider issues not first presented to the district court. The nature of this request, however, involving our supervisory jurisdiction over the courts and the bar, validates our review. Having considered the matter, we decline to exercise our supervisory authority. Cf. In re Evans; Sanders.

The exercise of our supervisory power, at this time, would be inappropriate. The Fifth Circuit Judicial Council is currently reviewing the local rules of the nine district courts within the circuit.⁹ Pursuant to the recently amended Fed.R.Civ.P. 83, the judicial council of each circuit is to examine all local rules to determine, in part, whether they “promote inter-district uniformity.” Notes of Advisory Committee on the 1985 amendments to Rule 83. That examination is underway in this circuit. Simultaneously, a separate effort to harmonize the rules of Louisiana’s three districts is in progress. We are reluctant to short-circuit or hamper those efforts in any way by precipitous action, particularly where no harm to Frazier has been demonstrated. We would merely note in passing, and without indicating any view on the merits, that in this circuit, only Middle Louisiana has a rule similar to those here challenged.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Footnotes

1

. The fact that Frazier is admitted to practice in Louisiana distinguishes this case from Matter of Roberts, 682 F.2d 105 (3d Cir. 1982).

2

. Rule 21.2 of the local rules of the Eastern District provides:

Any member in good standing of the bar of the Supreme Court of Louisiana who resides or maintains an office for the practice of law in the State of Louisiana is eligible for admission to the bar of this court.

3

. There is no dispute that Frazier meets all of the other requirements for admission in the Eastern District.

4

. Rule 23.3.1 of the local rules of the Eastern District, promulgated after Frazier had sought a writ of prohibition, enforces the goals of Rule 21.2. Rule 23.3.1 provides:

In order to continue as a member of the bar of this Court, an attorney must continuously and without interruption reside or maintain an office for the practice of law in the State of Louisiana.

An attorney admitted to practice before this Court, but who does not continuously qualify as set out herein, shall notify the Court within 30 days following termination of his qualifications that he desires to withdraw from the practice in this Court or that he desires a hearing to show cause why he should be permitted to continue to practice, though not qualified under the residence or office requirements of the rules.

An attorney who is not qualified to practice before this Court on the effective date of this rule (as amended), having previously failed to maintain the residence or office requirement of the rule, shall be allowed 90 days within which to notify the Court of his election to withdraw from practice in this Court or to request a hearing as described above.

At the time an attorney files the annual statement pursuant to the Rules of Disciplinary Enforcement of this Court, if the attorney has changed his residence or office address since the time of filing the previous annual statement, he shall certify that he is

still qualified to practice before this Court pursuant to the requirements set out herein.

5

. For a discussion of the difference between fundamental rights under the privileges and immunities clause and those rights under the equal protection clause, see Varat, supra, 48 U.Chi.L. Rev. at 513-15; Morgan, Fundamental State Rights: A New Basis for Strict Scrutiny in Federal Equal Protection Review, 17 Ga.L.Rev. 77, 89 n. 62 (1982) (questioning validity of the distinction).

6

. Any lawyer admitted to the bar of Louisiana who resides or has an office there meets this admission requirement. As attested, the smooth and efficient handling of the business of the court, including quick responses to appearance demands, is at the core of these rules. The court is aware that lawyers living or residing in Shreveport, Monroe, Lake Charles, and Lafayette, all within Louisiana but outside the Eastern District, are at a greater distance from the court in New Orleans than Frazier. Indeed, there are attorneys living or residing within the Eastern District who are more distant from New Orleans than Frazier’s home in Pascagoula, Mississippi.

7

. The latest available data reveals that 24 federal district courts have admission rules similar to those at issue here, requiring either a residence, office, or both: M.D.AIa., N.D.Ala., D.CoIo., D.Idaho, S.D.I1L, D.Kan., E.D.La., M.D.La., D.Me., E.D.Mo., W.D.Mo., D.Nev., E.D.N.C., D.N.D., S.D.Ohio, E.D.Pa., M.D.Pa., W.D.Pa., D.R.I., D.S.C., D.Utah, E.D.Va., W.D.Va., N.D. W.Va. The numbers and geographical spread speak for themselves. In addition, several district courts which allow non-residents to become members of their bars require the association of local counsel.

8

. Indeed, in this circuit ”[a]n applicant for admission pro hac vice who is a member in good standing of a state bar may not be denied the privilege to appear except ‘on a showing that in any legal matter, whether before the particular district court or in another jurisdiction, he has been guilty of unethical conduct of such a na ture as to justify disbarment of a lawyer admitted generally to the bar of the court.”¹ In re Evans, 524 F.2d 1004, 1007 (5th Cir.1975), quoting Sanders v. Russell, 401 F.2d at 247-48.

9

. The judicial council of the Fifth Circuit is composed of all circuit judges in active service and nine district judges, one from each district.

1

. Cf. Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341 (1949) (sustaining a classification that is both overinclusive and underinclusive “requires both the finding of sufficient emergency to justify the imposition of a burden upon a larger class than is believed tainted with the Mischief and the establishment of ‘fair reason' for failure to extend the operation of the law to a wider class”).