BARNARD V. THORSTENN, 489 U. S. 546 (1989)

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U.S. Supreme Court

Barnard v. Thorstenn, 489 U.S. 546 (1989)

Barnard v. Thorstenn

No. 87-1939

Argued January 11, 1989

Decided March 6, 1989*

489 U.S. 546


The District Court of the Virgin Islands' Local Rule 56(b) provides that, before an otherwise qualified attorney is admitted to the Virgin Islands Bar, he must "allege and prove to the satisfaction" of the Committee of Bar Examiners that he has "resided in the Virgin Islands for at least one year immediately preceding his proposed admission," and that, "[i]f admitted to practice, he intends to continue to reside in and to practice law in the Virgin Islands." Respondents Thorstenn and DeVos -- who do not reside in the Virgin Islands -- applied to take the Virgin Islands bar examination, but their applications were rejected because they did not satisfy Rule 56(b)'s residency requirements. They filed suit in the District Court, seeking a declaration that the residency requirements violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, and seeking to enjoin the enforcement of the Rule against them. The court granted summary judgment for petitioners -- the Chairman of the Committee of Bar Examiners and the Virgin Islands Bar Association -- concluding that the reasons offered for the residency requirements, grounded in the unique conditions in the Virgin Islands, were substantial enough to justify the discrimination against nonresidents. However, the Court of Appeals reversed, ruling that the residency requirements were invalid under Frazier v. Heebe, 482 U. S. 641, in which this Court invoked its supervisory power to invalidate certain residency requirements of the District Court for the Eastern District of Louisiana. In light of this ruling, the Court of Appeals did not address respondents' claim under the Privileges and Immunities Clause.


1. The Court will not exercise its supervisory power in this case, since both the nature of the District Court and the reach of its residency requirements implicate interests beyond the federal system. Although it is vested with the jurisdiction of a federal district court, the District Court of the Virgin Islands also has original jurisdiction over certain matters of local law and concurrent jurisdiction with the local courts over

Page 489 U. S. 547

certain criminal matters, and serves as an appellate court for decisions rendered by the local courts. Moreover, the application of Rule 56(b) itself extends beyond practice in the federal system to practice before the territorial courts. Pp. 489 U. S. 551-552.

2. Rule 56(b)'s residency requirements violate the Privileges and Immunities Clause, since none of the justifications offered in support of the requirements are sufficient to meet petitioners' burden of demonstrating that the discrimination against nonresidents is warranted by a substantial objective and bears a close or substantial relation to such an objective. Pp. 489 U. S. 552-558.

(a) Petitioners' contention that the geographical isolation of the Virgin Islands, together with irregular airline and telephone service with the mainland, make it difficult for nonresidents to attend court proceedings held with little advance notice, is an insufficient justification. The Virgin Islands could protect its interests by requiring lawyers who reside at a great distance to retain a local attorney who would be available for unscheduled meetings and hearings. P. 489 U. S. 554.

(b) The District Court's finding that the delay caused by trying to accommodate the schedules of nonresident attorneys would increase the massive caseload under which that court suffers is an insufficient justification. Any burden to accommodate nonresidents' travel schedules can be relieved by requiring them to associate with local counsel. Moreover, a Territory to which the Privileges and Immunities Clause applies may not solve the problem of congested court dockets by discriminating against nonresidents. Furthermore, the problem of conflicting court appearances is not unique to the Virgin Islands, and the District Court may make appropriate orders for prompt appearances and speedy trials. Pp. 489 U. S. 554-555

(c) Petitioners' claim that delays in the publication of local law require exclusion of nonresidents because they will be unable to maintain an adequate level of professional competence is unpersuasive. It can be assumed that a lawyer who anticipates sufficient practice in the Virgin Islands to justify taking the bar examination and paying the annual dues will inform himself of the laws of that Territory. Moreover, the fact that the most recent local legal materials are not available on a current basis is no more of a problem for nonresidents than residents. Pp. 489 U. S. 555-556.

(d) The contention that the Virgin Islands Bar Association does not have the resources and personnel for adequate supervision of the ethics of a nationwide bar membership is not a sufficient justification, since increased membership brings increased dues revenue, which presumably will be adequate to pay for any additional administrative burdens. Moreover, the problems faced by petitioners in monitoring the ethical conduct of nonresidents are no greater than those faced by any mainland State with limited resources. Pp. 489 U. S. 556-557.

Page 489 U. S. 548

(e) Petitioners' argument is unavailing that the residency requirements are necessary to a strict and fair application of Local Rule 16, which requires each active bar member to be available to accept appointments to appear on behalf of indigent criminal defendants, and which is interpreted by the District Court to require that only the appointed attorney may appear on behalf of the defendant. The strong interests in securing representation for indigents can be protected by allowing an appointed nonresident to substitute a colleague if he is unable to attend a particular appearance. Moreover, in some circumstances it would be detrimental to the goal of competent representation for criminal defendants to require the appointed attorney, whether a resident or nonresident, to appear personally. Rule 16, in fact, explicitly allows the District Court to substitute one appointed counsel for another where the interests of justice require. Petitioners' speculation that resident attorneys will be unwilling to enter into arrangements with nonresidents to make additional appearances when nonresidents are unavailable is insufficient to justify discrimination against nonresidents. If the nonresident fails to make the arrangements necessary to protect the rights of the indigent defendant, the District Court may take appropriate action. Pp. 489 U. S. 557-558.

842 F.2d 1393, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. REHNQUIST, C.J.,filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 489 U. S. 559.

Page 489 U. S. 549

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