Schoenefeld v. Schneiderman

821 F.3d 273, 2016 U.S. App. LEXIS 7303, 2016 WL 1612845
CourtCourt of Appeals for the Second Circuit
DecidedApril 22, 2016
DocketDocket 11-4283-cv
StatusPublished
Cited by18 cases

This text of 821 F.3d 273 (Schoenefeld v. Schneiderman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schoenefeld v. Schneiderman, 821 F.3d 273, 2016 U.S. App. LEXIS 7303, 2016 WL 1612845 (2d Cir. 2016).

Opinions

Judge HALL dissents in a separate opinion.

[276]*276REENA RAGGI, Circuit Judge:

On this appeal, we must decide whether New York violates the Constitution’s Privileges and Immunities Clause, see U.S. Const, art. IV, § 2, by requiring nonresident members of its bar to maintain a physical “office for the transaction of law business” within the state, when resident attorneys are not required to maintain offices distinct from their homes, N.Y. Judiciary Law § 470. Having now received the New York Court of Appeals’ response to our certified question as to the “minimum requirements necessary to satisfy” § 470’s office mandate, see Schoenefeld v. New York, 748 F.3d 464 (2d Cir.2014); Schoenefeld v. State, 25 N.Y.3d 22, 6 N.Y.S.3d 221, 29 N.E.3d 230 (2015) (holding § 470 to require physical office), we conclude that § 470 does not violate the Privileges and Immunities Clause because it was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law. To the contrary, the statute was enacted to ensure that nonresident, members of the New York bar could practice in the state by providing a means, ie., a New York office, for them to establish a physical presence in the state on a par with that of resident attorneys, thereby eliminating a service-of-process concern. We identify no protectionist intent in that action. Indeed, it is Schoenefeld who, in seeking to practice law, in New York without a physical presence in the state, is looking to be. treated differently from, not the same as, New York resident attorneys. Such differential treatment is not required by the Privileges and Immunities Clause. Accordingly, we reverse the judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) declaring § 470’s office requirement unconstitutional, see Schoenefeld v. New York, 907 F.Supp.2d 252 (N.D.N.Y.2011), and we remand the case with instructions to enter judgment in favor of defendants on Schoenefeld’s Privileges and Immunities claim.1- ,

I. Background

• Because the facts and procedural history underlying this appeal are set forth in our prior panel opinion with which we assume familiarity, we reiterate them here only insofar as necessary to explain our decision to reverse and remand.

A.. The Privileges and Immunities Clause Challenge to N.Y. Judiciary Law § 170

Plaintiff'Ekaterina Schoenefeld, a citizen and resident of New Jersey, is licensed to practice law in New Jersey, New York, and California. She maintains an office in New Jersey, but not in New York. She asserts that she has declined occasional requests to represent clients in New York state courts to avoid violating N.Y. Judiciary Law § 470, which states as follows:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this' state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

N.Y. Judiciary Law § 470 (McKinney 2016) (emphasis added). Schoenefeld seeks a judicial declaration that the office requirement imposed by § 470 on nonresident members, of the New York bar violates the Constitution’s Privileges and Immunities Clause by infringing on nonresident^’ right to practice law in New York. The district court agreed and, on [277]*277the parties’ cross-motions for summary judgment,. declared § 470 unconstitutional. See Schoenefeld v. New York, 907 F.Supp.2d at 262-66. This timely appeal followed.

B. This Court’s Certification to the New York Court of Appeals

In appealing the district court’s ruling, New York State’s Attorney General, on behalf of all defendants, initially argued that this case presented no Privileges and Immunities Clause concern because § 470’s office requirement could be construed to demand only “an address for accepting personal service,” which could be satisfied by a designated agent. Schoenefeld v. New York, 748 F.3d at 467. Alternatively, the Attorney General argued that, even if § 470 did treat nonresident attorneys differently from resident attorneys, it did not violate the Privileges and Immunities Clause because the burden imposed on nonresidents was “incidental” and substantially related to New York’s sufficient state interest in the service of legal papers. Id.

Seeking to avoid a possibly unnecessary constitutional question, see Arizonans for Official English v. Arizona, 520 U.S. 43, 78-79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (explaining that, in confronting constitutional challenge to statute, court must first determine if any reasonable , construction “will contain the statute within constitutional bounds,” and emphasizing that “[wjarnings against premature adjudication of constitutional questions bear heightened attention” where federal court is asked to invalidate state statute), but uncertain as to whether New York’s highest court would, in fact, construe § 470 as urged by defendants, see Schoenefeld v. New York, 748 F.3d at 468-69 (observing that New York’s lower courts had never interpreted § .470 to be satisfied by less than physical office space), this court certified the following' question to the New York Court of Appeals:

Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an “office for the transaction of law business” within the state of New York, .what are the minimum requirements necessary to satisfy that mandate? ■ ■

Id. at 471.

The Court of Appeals accepted the certification and, upon review, held that § 470 “requires nonresident attorneys to maintain a physical office in New York,” Schoenefeld v. State, 25 N.Y.3d at 25, 6 N.Y.S.3d at 222, 29 N.E.3d 230. In so ruling, the court observed that the statute, initially enacted in 1862, “appears to presuppose a residency requirement for the practice of law in New York State,” to which “[i]t then makes ah exception, by allowing nonresident attorneys to practice law if they keep ah ‘office for the transaction of law business’ ” in New York. Id. at 27, 6 N.Y.S.3d at 223, 29 N.E.3d 230. The Court acknowledged that the 1862 statute had linked'the office requirement to service of process, so that “service, which could ordinarily be made upon a New York attorney at his residence, could be made upon the nonresident attorney through mail addressed to his office.” Id., 6 N.Y.S.3d at 224, 29 N.E.3d 230. But, the two statutory parts were severed in 1909, with the office requirement codified at § 470 making no reference to service. See id. at 27-28, 6 N.Y.S.3d at 224, 29 N.E.3d 230. In these circumstances, the Court of Appeals concluded that the term “office,” as used in § 470, could not be construed to mean only an address or agent sufficient for the receipt of service. Rather, the plain meaning of “office,” particularly when joined with “the additional phrase ‘for the transaction of law business,’ ” requires “nonresident attorneys to, maintain a physical office [278]*278in New York.” Id. at 25, 28, 6 N.Y.S.3d at 222, 224, 29 N.E.3d 230.

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Bluebook (online)
821 F.3d 273, 2016 U.S. App. LEXIS 7303, 2016 WL 1612845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schoenefeld-v-schneiderman-ca2-2016.