REENA RAGGI, Circuit Judge:
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 § 470
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:
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 nonresidents' right to practice law in New York. The district court agreed and, on
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 "[w]arnings 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:
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 an exception, by allowing nonresident attorneys to practice law if they keep an `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
The Court of Appeals acknowledged a legitimate state interest in ensuring that personal service can be made on nonresident attorneys practicing in New York courts. But, in construing the statute, it observed that the "logistical difficulties" with service at the time the office requirement was enacted had largely been overcome by state law authorizing "several means of service upon a nonresident attorney, including mail, overnight delivery, fax and (where permitted) email," id. at 28, 6 N.Y.S.3d at 224, 29 N.E.3d 230 (citing N.Y. C.P.L.R. 2103(b) (McKinney 2015)), as well as the court's own rule conditioning the admission of nonresident attorneys without full-time employment in New York upon their designation of "the clerk of the Appellate Division in their department of admission as their agent for the service of process," id., 6 N.Y.S.3d at 224-25, 29 N.E.3d 230 (citing N.Y. Comp.Codes R. and Regs. tit. 22, § 520.13(a) (2015)). Thus, the office requirement could not be construed to require only an address for service. The term was properly understood to require a physical premises.
Because the Court of Appeals' response to our certified question does not moot Schoenefeld's constitutional challenge to § 470, we proceed to address her claim and conclude that it fails on the merits.
A. Standard of Review
We review an award of summary judgment de novo, and will affirm if "viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact." Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir.2015) (internal quotation marks and citation omitted). "Claims turning entirely on the constitutional validity or invalidity of a statute," such as the
B. The Privileges and Immunities Clause
The Privileges and Immunities Clause states that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2, cl. 1. The Clause operates to "place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those states are concerned." Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1868); see Bach v. Pataki, 408 F.3d 75, 88 (2d Cir.2005), overruled on other grounds by McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
The Privileges and Immunities Clause, however, is "not an absolute" that precludes states from ever distinguishing between citizens and noncitizens. Supreme Court of Va. v. Friedman, 487 U.S. 59, 67, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988); see Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. at 383, 98 S.Ct. 1852 (collecting cases and observing that state need not "always apply all its laws or all its services equally" to citizens and noncitizens). To prevail on a Privileges and Immunities challenge, a plaintiff must demonstrate that the state has burdened nonresident activity that is "sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges and Immunities Clause." Supreme Court of Va. v. Friedman, 487 U.S. at 64, 108 S.Ct. 2260 (internal quotation marks and alterations omitted). Upon such a showing, the state may defend its position by demonstrating that "substantial reasons exist for the discrimination and the degree of discrimination bears a sufficiently close relation to such reasons." Id. at 67, 108 S.Ct. 2260; accord Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d at 94. A court necessarily conducts these inquiries in light of the Supreme Court's recent admonition that constitutionally protected privileges and immunities are burdened "only when [challenged] laws were enacted for [a] protectionist purpose." McBurney v. Young, ___ U.S. ___, 133 S.Ct. 1709, 1715, 185 L.Ed.2d 758 (2013).
In McBurney, which was decided after the district court ruled in this case, a nonresident plaintiff challenged Virginia's Freedom of Information Act ("FOIA") for hampering his ability to pursue a common calling. He alleged that the law, by allowing only Virginia citizens to inspect and copy public records, abridged his ability to
We do not understand McBurney to state any new principle of law. Nevertheless, McBurney provides a clarification not available to the district court at the time it ruled in this case, specifically, that the Privileges and Immunities Clause does not prohibit state distinctions between residents and nonresidents in the abstract, but "only" those "enacted for the protectionist purpose of burdening out-of-state citizens" with respect to the privileges and immunities afforded the state's own citizens. 133 S.Ct. at 1715; see Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. at 380-81, 98 S.Ct. 1852.
Nor do we understand McBurney to suggest that the disparate effects of a challenged state law are completely irrelevant to a Privileges and Immunities inquiry. As the Supreme Court has recognized in other contexts, burdensome effects can sometimes admit an inference of proscribed intent. Cf. Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (noting relevancy of disproportionate impact to racially discriminatory intent). What McBurney makes plain, however, is that it is protectionist purpose, and not disparate effects alone, that identifies the sort of discrimination prohibited by the Privileges and Immunities Clause, by contrast, for example, to the Commerce Clause. See generally McBurney v. Young, 133 S.Ct. at 1720 (separately analyzing challenged law under dormant Commerce Clause); cf. Comptroller of the Treasury of Md. v. Wynne, ___ U.S. ___, 135 S.Ct. 1787, 1801 n. 4, 191 L.Ed.2d 813 (2015) (observing that "Commerce Clause regulates effects, not motives," and does not require court inquiry into "reasons for enacting a law that has a discriminatory effect").
With these principles in mind, we consider Schoenefeld's challenge to § 470.
C. Schoenefeld Has Adduced No Proof that § 470 Was Enacted for a Protectionist Purpose
Schoenefeld asserts that § 470 violates the Privileges and Immunities Clause both on its face and as applied. Insofar as the law, both on its face and as applied, pertains to the practice of law, the parties agree that § 470 implicates a privilege protected by the Privileges and Immunities Clause. See Supreme Court of N.H. v. Piper, 470 U.S. 274, 283, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985); accord Supreme Court of Va. v. Friedman, 487 U.S. at 65, 108 S.Ct. 2260. The parties also do not dispute that § 470 imposes a physical office requirement on nonresident attorneys that does not apply to resident attorneys, who may use their homes as their offices. See Schoenefeld v. New York, 748 F.3d at 468 (discussing New York precedent recognizing that resident New York attorney may use home as office).
In some circumstances, a facial classification is enough, by itself, to manifest a proscribed intent. This is most apparent where the facial classification is based on an invidious factor, such as race. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227-36, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (subjecting facial classifications based on race to strict scrutiny review). But precisely because the Privileges and Immunities Clause is not an absolute, not every facial distinction between state residents and nonresidents will admit an inference of protectionist purpose.
In reaching that conclusion we look, as the McBurney Court did with the Virginia FOIA, to the purpose of § 470.
In 1877, Chapter 43's office requirement and office service authorization were codified at § 60 of New York's new Code of Civil Procedure. See Schoenefeld v. State, 25 N.Y.3d at 27, 6 N.Y.S.3d at 224, 29 N.E.3d 230. In a 1909 recodification, however, the two provisions were divided, with the service part remaining at § 60, while the office requirement became § 470. As the New York Court of Appeals observed, the latter requirement has remained virtually unchanged to the present, while state law and court rules now authorize service by various means in addition to home and office. See id. at 28, 6 N.Y.S.3d at 224, 29 N.E.3d 230. But even if § 470's office requirement is now largely vestigial as a means for ensuring service, the fact remains that the law was enacted for that nonprotectionist purpose, and Schoenefeld
In urging otherwise, Schoenefeld argues that Chapter 43 must be viewed in context, as an exception to what was then New York's general ban on nonresident attorneys. The argument fails because Schoenefeld has not been burdened by that general ban, which was invalidated in 1979. See In re Gordon, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979). Further, she offered no proof that the office requirement was enacted to further the general ban so as to admit an inference of protectionist intent. Rather, as just noted, the office requirement was enacted as an exception to the ban, ensuring an in-state place of service so that, once admitted, nonresident New York lawyers could practice in the state's courts on functionally the same terms as resident lawyers.
No more can a protectionist purpose be inferred from the 1877 and 1909 recodifications of the office requirement or from New York's failure thereafter to repeal § 470. After the New York Court of Appeals struck down the state's general ban on the admission of nonresident lawyers, see In re Gordon, 48 N.Y.2d at 269, 422 N.Y.S.2d at 642-43, 397 N.E.2d 1309, the legislature "amended several provisions of the Judiciary Law and the CPLR to conform to that holding," Schoenefeld v. State, 25 N.Y.3d at 28, 6 N.Y.S.3d at 224, 29 N.E.3d 230. Schoenefeld offers no evidence that anyone identified a need to repeal § 470 as part of that process, much less that the legislature thereafter refused to do so for the protectionist purpose of favoring resident attorneys. See McBurney v. Young, 133 S.Ct. at 1715.
Further, this is not a case where the alleged burdensome effects of the challenged statute admit an inference of protectionist purpose.
Schoenefeld nevertheless contends that § 470 is unconstitutional because the statute, as applied, requires her to incur the costs of a New York office when she is already incurring the costs of her New Jersey home and office. The flaw in this argument is that Schoenefeld's New Jersey expenses are not a product of New York law. New York can be held to account
Indeed, the effects of § 470, as applied, are no different from those of a law that on its face requires all attorneys to maintain a physical presence in New York. Sister circuits have upheld such statutes against Privileges and Immunities challenges.
For example, Kleinsmith v. Shurtleff involved a Privileges and Immunities challenge to a Utah statute requiring "all attorneys who act as trustees of real-property trust deeds in Utah to `maintain a place within the state.'" 571 F.3d at 1035 (alteration in original) (quoting Utah Code Ann. § 57-1-21(1)(a)(i) (2009)). Plaintiff argued that the law discriminated against nonresidents because residents could use their homes as the specified "place within the state," while nonresidents would need to lease offices. Id. at 1044. The Tenth Circuit, however, held that the law was neutral because it equally required all trustees to have a physical presence in the state. See id. at 1044-47. In reaching this conclusion, the court relied on the statute's lack of facial classification between residents and nonresidents. See id. at 1046. But insofar as plaintiff complained of a disparate impact as applied, the court held it "irrelevant to the [Privileges and Immunities] Clause whether the practical effect of the maintain-a-place requirement... burdens nonresidents disproportionately." Id. at 1047.
Similarly, in Tolchin v. Supreme Court of New Jersey, the Third Circuit upheld a New Jersey law requiring all attorneys to maintain a "bona fide office" within the state, while recognizing that only resident attorneys could use their homes to satisfy the requirement. 111 F.3d at 1107-08. As in Kleinsmith, the court identified no Privileges and Immunities Clause violation because the law "similarly affect[s] residents and nonresidents. Resident and nonresident attorneys alike must maintain a New Jersey office." Id. at 1113.
What Schoenefeld in fact seeks through this action is not to practice law in New York on the same conditions as a resident attorney who by virtue of home (or home and office) maintains a physical presence in the state. Rather, she seeks to practice law on different terms, specifically, without maintaining a physical presence in the state. The Privileges and Immunities Clause proscribes laws that favor residents over nonresidents in their pursuit of a common calling. It does not mandate that nonresidents be allowed to practice law in a state on terms different from those applicable to residents.
Accordingly, whether Schoenefeld challenges § 470 on its face or as applied, her Privileges and Immunities Clause claim fails because she has not demonstrated that the law was enacted for or serves the protectionist purpose of favoring resident New York attorneys and disfavoring nonresident attorneys in practicing law in the state's courts. See McBurney v. Young, 133 S.Ct. at 1715. We therefore reverse the district court decision declaring § 470 violative of the Privileges and Immunities Clause.
To summarize, we conclude as follows:
2. New York's in-state office requirement for nonresident attorneys admitted to the state's bar, N.Y. Judiciary Law § 470, was not enacted for a protectionist purpose disfavoring nonresident admitted attorneys but, rather, for the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court-identified service-of-process concern.
3. Schoenefeld has offered no proof of an animating protectionist purpose, either on the face of the statute or inferred from its effects as applied. Indeed, the effect of § 470, as applied, is no different from a neutral statute requiring all licensed New York attorneys, resident and nonresident alike, to maintain a physical presence in the state, which raises no Privileges and Immunities concern.
4. Schoenefeld cannot point to the expenses of her practice in New Jersey, not required by New York law, to pursue a Privileges and Immunities challenge to § 470 in the absence of any proof that that statute's in-state office requirement was enacted for a protectionist purpose.
Accordingly, we REVERSE the district court's judgment invalidating § 470, and we REMAND the case with instructions to deny Schoenefeld's motion for summary judgment and to award judgment in favor of defendants.
HALL, Circuit Judge, dissenting:
The majority holds that a New York statute that discriminates, on its face, against nonresident attorneys — burdening them with the expense of maintaining an office in New York while exempting resident attorneys from the same requirement — does not offend the Privileges and Immunities Clause of Article IV, § 2 of the Constitution because, in the majority's view, the plaintiff has failed to prove that the statute evinces a "protectionist" intent. In doing so, the majority injects an entirely novel proposition into our Privileges and Immunities Clause jurisprudence: that a State's explicit discrimination against nonresidents with regard to a fundamental right is constitutionally unobjectionable unless the nonresident makes out a prima facie case of discriminatory intent. Such a holding reverses the State's burden of demonstrating that it has a substantial interest justifying the discrimination and that the means chosen bear a close and substantial relation to that interest. Even under the majority's reformulation of our settled law, however, Schoenefeld has established that the New York statute has protectionist aims, and the State's proffered justifications for the discrimination fail to survive scrutiny. I respectfully dissent.
The two-step inquiry to be conducted under the Privileges and Immunities Clause is well established. First, the court considers whether a State has, in fact, discriminated against out-of-staters with regard to the privileges and immunities it accords its own citizens. See Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 94 (2d Cir.2003) (citing United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 218, 222, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984)). "The activity in question must be sufficiently basic to the livelihood of the Nation ... as to fall within the purview of the Privileges and Immunities Clause.... For it is only
On its face, New York Judiciary Law § 470 discriminates against nonresident attorneys with regard to the practice of law, long recognized by the Supreme Court as a "fundamental right" subject to protection under the Privileges and Immunities Clause. Id. at 281, 105 S.Ct. 1272. As we explained in our prior opinion in this case, Schoenefeld v. New York, 748 F.3d 464 (2d Cir.2014), and the New York Court of Appeals unanimously agreed after we certified to it a question, Schoenefeld v. State, 25 N.Y.3d 22, 6 N.Y.S.3d 221, 29 N.E.3d 230 (2015), Section 470 draws a distinction between attorneys who are residents of New York and those who are not. The statute imposes no specific requirement on resident attorneys to maintain a bona fide office, thus permitting them to set up an "office" on the kitchen table of their studio apartments if so desired. Schoenefeld, 748 F.3d at 468. Nonresident attorneys, however, are required to maintain an "office for the transaction of law business" within the State. N.Y. Judiciary Law § 470. We recognized that "[t]his additional obligation carries with it significant expense — rents, insurance, staff, equipment inter alia — all of which is in addition to the expense of the attorney's out-of-state office, assuming she has one." Schoenefeld, 748 F.3d at 468. Absent a controlling state decision that an "office for the transaction of law business," § 470, meant something other than a bona fide office, we concluded that, "as it stands, it appears that Section 470 discriminates against nonresident attorneys with respect to their fundamental right to practice law in the state and, by virtue of that fact, its limitations on nonresident attorneys implicate the Privileges and Immunities Clause." Id. at 469.
New York argued to us, however, that the statute could be interpreted as requiring no more than a P.O. box or designated agent for service of process, lessening the burden on nonresident attorneys considerably and making Section 470 more likely to survive scrutiny. Id. While our own review of New York law indicated that a designated physical office space was required, we recognized that the question had not been spoken to by the New York Court of Appeals, and we certified to that court the question: "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. In doing so, we represented that the Court of Appeals' answer would, "in all likelihood, dictate the outcome of the constitutional privileges and immunities analysis we have commenced and must complete as we decide the appeal before us." Id. The Court of Appeals accepted certification and graciously took time away from its own busy docket to unanimously answer that § 470 required the nonresidents maintain a physical office space. Schoenefeld, 25 N.Y.3d
The majority now disregards the New York Court of Appeals' decision as well as our own prior opinion which, together, constitute the law of the case. See DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73, 76 (2d Cir.1992) (noting that, absent an intervening change in controlling law, availability of new evidence, or the need to correct a clear error or manifest injustice, a court's decision upon a rule of law "should continue to govern the same issues in subsequent stages in the same case") (internal quotation marks omitted). Those decisions acknowledged that Section 470 discriminates between in-state and out-of-state attorneys solely on the basis of their residency. Under longstanding precedent, that determination disposes of the initial inquiry; the burden then shifts to the State to provide "sufficient justification for the discrimination." Crotty, 346 F.3d at 94. Departing from these precedents, however, the majority holds that the plaintiff bears the initial burden of "alleg[ing] or offer[ing] some proof of a protectionist purpose" in order to state a claim under the Privileges and Immunities Clause. Majority Op., ante at 280. In the majority's estimation, if the plaintiff fails to allege a prima facie case of protectionist intent, her "Privileges and Immunities claim fails, obviating the need for a tailoring inquiry." Majority Op., ante at 280.
The majority bases its reasoning exclusively on its reading of the Supreme Court's decision in McBurney v. Young, ___ U.S. ___, 133 S.Ct. 1709, 185 L.Ed.2d 758 (2013). As the majority acknowledges, that decision did not state any new principle of law, but merely confirmed that the Privileges and Immunities Clause forbids laws that abridge the right to pursue a common calling only when those laws "were enacted for the protectionist purpose of burdening out-of-state citizens."
The majority's reading that McBurney requires a plaintiff to allege, as part of a prima facie case, that the law was specifically enacted for a protectionist purpose misconstrues McBurney's invocation of the two-step analysis.
McBurney is distinguishable from this case for the simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling. Rather, the FOIA provides a mechanism for seeking political accountability, and its effects on the plaintiff's profession — data gathering for profit — were purely "incidental." Id. It is well-established that, "[w]hile the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen." Id. Section 470, by contrast, directly regulates the legal profession by expressly and intentionally placing practice requirements on
By requiring plaintiffs to allege a prima facie case of discriminatory intent, the majority, in effect, relieves the State of its burden to provide a sufficient justification for laws that discriminate against nonresidents with regard to fundamental rights. See Crotty, 346 F.3d at 95 (explaining that States may not "treat residents and nonresidents disparately in connection with the pursuit of commerce, a trade, or business venture where that disparate treatment is not supported by a sufficient justification"). Determining whether an unacceptable purpose, such as economic protectionism, underlies the challenged law is at the core of the analysis engaged in after the threshold determination into whether a right implicated by the Privileges and Immunities Clause has been abridged. See Piper, 470 U.S. at 284, 105 S.Ct. 1272 ("The conclusion that [a State law] deprives nonresidents of a protected privilege does not end our inquiry ... The Clause does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective."). Examining the government's proffered reason for the discrimination and determining whether the challenged law, as enacted, conforms to the proffered reason is the method by which courts determine whether the proffered reason is genuine or merely a pretext for economic protectionism. Crotty, 346 F.3d at 97 ("Part and parcel to this analysis is determining whether [the State] ha[s] demonstrated a substantial factor unrelated to economic protectionism to justify the discrimination."). The majority's reasoning would reverse this burden-shifting test by requiring plaintiffs to show that a law was enacted for a protectionist purpose, rather than requiring the State to show that the law was not enacted for a protectionist purpose.
Tellingly, in support of this proposition the majority draws exclusively on cases addressing challenges under the Equal Protection Clause, for which plaintiffs must plead discriminatory intent as part of a prima facie case. Majority Op., ante at 279-80 (citing, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 682, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). The majority has not cited, nor does there exist, any case suggesting that the requirement to allege discriminatory intent as part of a prima facie case under the Equal Protection Clause also applies to Privileges and Immunities claims. Indeed, Virginia v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), stands for the opposite proposition. In Friedman, Virginia argued that its residency requirement for admission to the State's bar on motion did not implicate the Privileges and Immunities Clause on the basis that, because nonresident attorneys could seek admission by taking the Virginia bar exam, "the State cannot be said to have discriminated against nonresidents as a matter of fundamental concern." Id. at 65, 108 S.Ct. 2260 (internal quotation marks omitted). The Supreme Court rejected that argument as "quite inconsistent with
The Equal Protection cases cited by the majority, moreover, are distinguishable on the ground that the challenged policies in those cases were facially neutral but produced racially disparate effects. See Iqbal, 556 U.S. at 682, 129 S.Ct. 1937 (holding that plaintiffs failed to allege that detention policy that disproportionately affected Muslims and Arabs was motivated by a racially discriminatory purpose); Davis, 426 U.S. at 244, 96 S.Ct. 2040 (concluding that facially neutral employment test was not racially discriminatory simply because a greater proportion of African Americans fared poorly). The plaintiffs were thus required to allege facts showing that an otherwise-neutral policy was motivated by an impermissible discriminatory purpose. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Section 470, by contrast, draws a facial distinction between residents and nonresidents with regard to the privilege of practicing law; by its very terms, it imposes burdens on nonresidents that it does not impose on residents. Because the statute, on its face, discriminates against nonresidents, no other threshold showing of discriminatory intent is required.
In sum, Section 470 discriminates against nonresidents with respect to the practice of law, a fundamental right long recognized as protected under the Privileges and Immunities Clause. The majority recognizes as much, see Majority Op., ante at 281-82, but erroneously imposes a threshold requirement that the plaintiff challenging the discrimination prove there is a protectionist intent above and beyond the traditional analysis.
Plaintiff having established that a fundamental right has been implicated, it is the State's burden to provide a sufficient justification for the discrimination by demonstrating that "(i) there is a substantial
The State's proffered justifications for the in-state office requirement — effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys' fiduciary obligations, and making attorneys more accessible to New York's courts — are plainly not sufficient. Regarding the issue of service, the Court of Appeals itself observed that, although "service on an out-of-state individual presented many more logistical difficulties in 1862, when [Section 470] was originally enacted," today there are "adequate measures in place relating to service upon nonresident attorneys," including the methods of mail, overnight delivery, fax and (where permitted) email, as authorized by the CPLR, and the requirement under 22 N.Y.C.R.R. § 520.13(a) that nonresident attorneys designate an in-state clerk of court as their agent for service of process in order to be admitted in New York. Schoenefeld, 25 N.Y.3d at 28, N.Y.S.3d at 224-25, 29 N.E.3d 230. Thus, not only do "there exist alternative means of furthering the State's purpose without implicating constitutional concerns," Friedman, 487 U.S. at 66, 108 S.Ct. 2260, but those means are already in place.
The State's argument that an in-state office requirement is necessary to regulate the behavior of nonresident attorneys fares no better. The Court has long rejected similar arguments in favor of a residency requirement on the grounds that a "nonresident lawyer's professional duty and interest in his reputation should provide the same incentive to maintain high ethical standards as they do for resident lawyers," and that the State, in any event, "has the authority to discipline all members of the bar, regardless of where they reside."
The majority, moreover, has not engaged in a meaningful analysis of the sufficiency of the State's proffered justifications, underscoring the extent of its departure from the established two-step inquiry under the Privileges and Immunities Clause. Instead, the majority concludes that Schoenefeld's claim must fail at the threshold because, in its view, she has failed to prove that Section 470 was enacted for a protectionist purpose. Even if such a prima facie showing is required, Schoenefeld has made one out based on the plain text and history of Section 470.
It is undisputed that, at the time Section 470 was enacted, it was part of a larger statutory scheme designed to prohibit nonresident attorneys from practicing in New York. See Richardson v. Brooklyn City & N.R. Co., 22 How. Pr. 368, 370 (N.Y.Sup. Ct. Feb. 1, 1862) (noting that the court "ha[d] always required that an attorney should reside within the state"). Chapter 43, the earliest predecessor to Section 470, provided a less burdensome, but still burdensome, exception to the overall residency requirement as an accommodation to commuters in adjacent states. Rosenberg v. Johns-Manville Sales Corp., 99 Misc.2d 554, 416 N.Y.S.2d 708, 710 (Sup.Ct.1979) (explaining with respect to Section 470 that "[t]he requirement of residence, as a condition to the continued right to practice, appears to have been ameliorated for attorneys who reside in an adjacent State, but only upon condition they maintain an office for the practice of law in this State"); see also Brennan, Repeal Judiciary Law § 470, 62 N.Y.S.B.J. 20, 21 (Jan.1990) ("The primary purpose of chapter 43 was to carve out an exception to the general rule that an attorney could not practice in the New York State courts unless he was a resident of New York State."). The majority contends that this statutory context is irrelevant because Schoenefeld has not been burdened by the general ban on nonresident attorneys, which was invalidated under the Privileges and Immunities Clause in 1979. See Majority Op., ante at 282 (citing In re Gordon, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979)). That a discriminatory and burdensome requirement can be stylized as an "exception" to an even more discriminatory and burdensome requirement, however, does not render it nondiscriminatory or render implausible a threshold inference of discriminatory purpose.
Finally, the majority concludes that the burdensome effects of Section 470 on nonresident attorneys are not actually discriminatory because, by ensuring that every attorney that practices in New York has a "physical premises" in the State, the office requirement serves "to place resident and nonresident attorneys on an equal footing, not to favor the former over the latter." Majority Op., ante at 284. Thus, the majority faults Schoenefeld's supposed failure to demonstrate that Section 470 poses an "undu[e] burden," Majority Op., ante at 284, because she did not provide evidence to show that significant numbers of New York attorneys in fact practice from their homes rather than
The majority asserts that Section 470 places all attorneys on equal footing because the statute is, in effect, no different from a law that requires all attorneys to maintain a "physical presence" in New York. See Majority Op., ante at 284. But unlike the statutes upheld as constitutional in Kleinsmith v. Shurtleff, 571 F.3d 1033, 1044-45 (10th Cir.2009) and Tolchin v. Supreme Court of N.J., 111 F.3d 1099, 1107-08 (3d Cir.1997), which require all attorneys to maintain a physical presence within the State, Section 470 explicitly draws a distinction based on residency. This case is thus analogous to Piper and Friedman, where states' restrictions on legal practice that applied only to nonresidents were invalidated under the Privileges and Immunities Clause. Friedman, 487 U.S. at 70, 108 S.Ct. 2260; Piper, 470 U.S. at 288, 105 S.Ct. 1272. The Supreme Court, moreover, has long rejected the notion that a State's authority to pass a facially neutral law also empowers it to pass a discriminatory law. Friedman, 487 U.S. at 66-67, 108 S.Ct. 2260 ("A state's abstract authority to require from resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held to shield the discriminatory distinction from the reach of the Privileges and Immunities Clause."). That New York could enact some other law that does not distinguish between residents and nonresidents is entirely inapposite to the question before us now.
The State of New York has chosen to discriminate against nonresident attorneys with regard to their right to pursue a common calling, and it has failed to provide a substantial justification for that discrimination. In holding to the contrary,
Id. at 370.