National Ass'n for Advancement of Multijurisdiction Practice v. Castille , 799 F.3d 216 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1481
___________
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
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:13-cv-07382)
District Judge: Honorable Gerald A. McHugh
____________________________________
Submitted under Third Circuit LAR 34.1(a)
June 25, 2015
Before: CHAGARES, KRAUSE, and BARRY, Circuit
Judges
(Opinion filed: August 26, 2015)
Joseph R. Giannini, Esq.
Room 5
12016 Wilshire Boulevard
Los Angeles, CA 90025
Counsel for Appellants
Michael Daley, Esq.
Supreme Court of Pennsylvania
Administrative Office of Pennsylvania Courts
1515 Market Street
Suite 1414
Philadelphia, PA 19102
Counsel for Appellees
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
2
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,
3
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
1
The District Court, after a careful analysis, found that
both Rosario and Riviere have standing to press their claims
because their alleged injury—denial of admission to the
Pennsylvania bar—is concrete and particularized; caused by
Rule 204; actual and imminent; and redressable by the
remedy sought in this suit. See Nat’l Ass’n for Advancement
of Multijurisdictional Practice (NAAMJP) v. Castille, 66 F.
Supp. 3d 633, 639-40 (E.D. Pa. 2014) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). Additionally, the
District Court found that NAAMJP could establish
associational standing under Hunt v. Washington State Apple
Advertising Comm’n, 432 U.S. 333, 343 (1977). See
NAAMJP, 66 F. Supp. 3d at 642. We are satisfied that at least
one Appellant has standing, allowing us to proceed to the
4
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
merits. See Schumacher v. Nix, 965 F.2d 1262, 1264 n.1 (3d
Cir. 1992) (citing Bowsher v. Synar, 478 U.S. 714, 721
(1986)).
5
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
6
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, 135 S. Ct. 2048
(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
7
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 (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, 135 S. Ct. 2374 (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 (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
Pennsylvania is even aware of the views of the Appellants or
any other applicant, or of what applicants will say or do
during their legal careers. Therefore, Rule 204 does not “pass
judgment on the content of [any] speech.” Thomas v. Chi.
8
Park Dist., 534 U.S. 316, 322 (2002); see also Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994) [hereinafter
“TBS”] (“[L]aws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are
in most instances content neutral.”).
Neither does Rule 204 regulate when, where, or how
attorneys speak, nor does it prohibit a category of
professional speech like the statute at issue in King. Rather,
the only restriction Rule 204 imposes on Appellants is that
they must take the Pennsylvania bar exam or apply for pro
hac vice status to practice law in Pennsylvania. Thus, the rule
also cannot be pegged as a time, place, and manner
restriction.
Instead, we conclude Rule 204 is an exercise of
Pennsylvania’s “broad power to establish standards for
licensing practitioners and regulating the practice of
professions.” King, 767 F.3d at 229 (quoting Goldfarb v. Va.
State Bar, 421 U.S. 773, 792 (1975)) (internal quotation
marks omitted). Because it regulates only the requirements
for obtaining a license to practice law and does not “restrict[]
what a professional can and cannot say,” Rule 204 does not
“create[] a ‘collision between the power of government to
license and regulate those who would pursue a profession or
vocation and the rights of freedom of speech . . . guaranteed
by the First Amendment.’” Id. (quoting Lowe v. SEC, 472
U.S. 181, 228 (1985) (White, J., concurring in the judgment)).
It has long been true that “[a] State can require high
standards of qualification, such as good moral character or
proficiency in its law, before it admits an applicant to the
bar,” so long as any requirement has “a rational connection
with the applicant’s fitness or capacity to practice law.”
9
Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 239
(1957). While Schware itself involved a Due Process
challenge rather than a First Amendment one, the influential
opinions of Justice Jackson in Thomas v. Collins, 323 U.S.
516 (1945), and Justice White in Lowe v. SEC, 472 U.S. 181
(1985), that were central to our decision in King (as well as
recent professional speech cases from other Circuits) make
clear that the same analysis applies. See King, 767 F.3d at
229-31; see also Lowe, 472 U.S. at 228 (White, J., concurring
in the judgment) (“Regulations on entry into a profession, as a
general matter, are constitutional if they ‘have a rational
connection with the applicant’s fitness or capacity to practice’
the profession.” (quoting Schware, 353 U.S. at 239)); Collins,
323 U.S. at 544 (Jackson, J., concurring) (“A state may forbid
one without its license to practice law as a vocation . . . .”).
In sum, because Rule 204 is not a prohibition or other
restriction on professional speech, but rather, a content-
neutral licensing requirement for the practice of law, it is
valid under the First Amendment if it has a rational
connection with the applicant’s fitness or capacity to practice
the profession. Rule 204 easily passes this test.
While Appellants raise intriguing arguments as to the
virtues of the bar exam requirement, they cannot meet their
burden of “negati[ng] every conceivable basis which might
support [the rule], whether or not the basis has a foundation in
the record.” Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d
862, 876 (3d Cir. 2012) (quoting Heller v. Doe, 509 U.S. 321,
320-21 (1993)) (internal quotation mark omitted).
Ultimately, it is not our role to “judge the wisdom, fairness,
or logic of legislative choices.” Parker v. Conway, 581 F.3d
198, 202 (3d Cir. 2009) (quoting FCC v. Beach Commc’ns,
10
Inc., 508 U.S. 307, 313 (1993)) (internal quotation mark
omitted).
While according to Appellants, Appellees have
conceded that Rule 204 “has nothing to do with [attorney]
competence or client protection in Pennsylvania,” Appellant’s
Br. 6, Appellees have done no such thing. It is true that the
parties stipulated that “Pennsylvania’s interest in the
reciprocity provision is to ease the burden of bar admission
for Pennsylvania attorneys seeking to practice law in other
states.” App. 52 (emphasis added). But the relevant feature
of Rule 204 in determining whether the Rule imposes an
unlawful restriction on Appellants’ speech is the requirement
that, if they do not meet its requirements, they must take the
Pennsylvania bar exam or apply for pro hac vice admission to
practice law in Pennsylvania. Appellees certainly have not
admitted that the bar exam or pro hac vice requirements have
nothing to do with client protection. Appellants’ quarrel with
the waiver of those requirements for certain attorneys must be
viewed as an argument that Rule 204 is underinclusive or
discriminatory (an argument we discuss and reject below), not
that the Rule has nothing whatsoever to do with client
protection.
Accordingly, our suggestion in King that “[a] state law
[prohibiting professional speech] may be subject to strict
scrutiny if designed to advance an interest unrelated to client
protection” has no bearing here. See 767 F.3d at 235.
Additionally, our conclusion in Schumacher that
Pennsylvania’s decision to prevent graduates of unaccredited
law schools barred in nonreciprocal states from taking the
Pennsylvania bar exam did not “promote[] Pennsylvania’s
interest in ensuring a competent bar,” 965 F.2d at 1270 n.11,
does not compel a different result. Schumacher involved an
11
Equal Protection challenge, so our focus was on the different
treatment of members of reciprocal and nonreciprocal bars,
see id. at 1266, 1269-70, as was our focus here in rejecting
Appellants’ own Equal Protection arguments, see supra pp. 4-
6. For First Amendment purposes, however, our focus is on
the restriction on speech, if any, and any challenge to an
allegedly disparate application of that restriction must be
analyzed as a question of underinclusiveness or content or
viewpoint discrimination.
Pennsylvania’s decision to allow experienced attorneys
in reciprocal states, but not nonreciprocal states, to apply for
admission by motion does not undermine Rule 204’s rational
basis on either underinclusiveness or content or viewpoint
discrimination grounds. Even if that decision rendered Rule
204 underinclusive, the Rule could nevertheless survive
rational basis review, especially because accommodating
attorneys admitted in reciprocal states furthers the legitimate
“secondary objective[s]” of securing favorable treatment for
attorneys admitted in Pennsylvania and making admission to
the Pennsylvania bar more attractive. See Vance v. Bradley,
440 U.S. 93, 109 (1979). And despite Appellants’ claims to
the contrary, the fact that attorneys of reciprocal states face
fewer hurdles to admission than attorneys of nonreciprocal
states does not constitute speaker discrimination. Speaker-
partial laws trigger heightened scrutiny only “when they
reflect the Government’s preference for the substance of what
the favored speakers have to say (or aversion to what the
disfavored speakers have to stay).” TBS, 512 U.S. at 658;2
2
Appellants are correct that TBS applied intermediate
scrutiny, rather than rational basis review, after rejecting strict
scrutiny. See TBS, 512 U.S. at 661-62. TBS involved the
12
see also Regan v. Taxation with Representation of Wash., 461
U.S. 540, 548 (1983) (rejecting First Amendment challenge to
differential tax treatment of veterans groups and other
charitable organizations absent any “indication that the statute
was intended to suppress any ideas or any demonstration that
it has had that effect”); cf. Citizens United v. FEC, 558 U.S.
310, 340 (2010) (explaining that “attempts to disfavor certain
subjects or viewpoints” and “restrictions distinguishing
among different speakers” are “interrelated,” as “[s]peech
restrictions based on the identity of the speaker are all too
often simply a means to control content”). Rather, as we have
noted, Rule 204 does not reward, punish, or even
acknowledge the content or viewpoint of any attorney’s
speech.
Finally, we reject Appellants’ contention the Rule 204
places an unconstitutional prior restraint on speech, as
“must-carry” provisions of the Cable Television Consumer
Protection and Competition Act of 1992, which require cable
television systems to devote a portion of their channels to the
transmission of local broadcast stations. Id. at 626. The
Court characterized those provisions as “content-neutral
restrictions that impose an incidental burden on speech,” and
concluded they deserved the same scrutiny as the time, place,
and manner restrictions at issue in Ward and the prohibition
on burning Selective Service registration cards at issue in
United States v. O’Brien, 391 U.S. 367 (1968). TBS, 512
U.S. at 661-62 (citing Ward, 491 U.S. at 799; O’Brien, 391
U.S. at 377). TBS does not support the notion, however, that
intermediate scrutiny applies to professional licensing
requirements.
13
Pennsylvania does not “determine whether [an] applicant”
should be admitted “on the basis of its review of the content”
of the applicant’s speech. Se. Promotions, Ltd. v. Conrad,
420 U.S. 546, 554 (1975). Indeed, Rule 204 does not compel
speakers to seek approval before they engage in any particular
speech, but instead, imposes general prerequisites to
practicing law in Pennsylvania. See Citizens United, 558 U.S.
at 335. Moreover, the rule does not give officials “unbridled
discretion” to prohibit speech, City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 757 (1988), as it provides
objective criteria for admission, and all admissions decisions
are subject to judicial review, see Pa. Bar Admission Rules
204, 222. In sum, we conclude that Rule 204 does not violate
the First Amendment’s protection of free speech.3
2. Freedom of Association
Appellants next assert that Rule 204 violates their
freedom of association. There are two such freedoms
protected by the First Amendment: “intimate association and
expressive association.” Pi Lambda Phi Fraternity, Inc. v.
Univ. of Pittsburgh, 229 F.3d 435, 441 (3d Cir. 2000) (citing
Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984)).
Appellants invoke only the latter, arguing that Rule 204
imposes penalties and withholds benefits because of their
membership in the bars of nonreciprocal states. We outlined
a three-step process for analyzing an expressive association
claim in Pi Lambda Phi: First, we consider “whether the
group making the claim engaged in expressive association”;
3
The District Court rejected Appellants’ argument that
Rule 204 is unconstitutionally overbroad. Because
Appellants have not challenged that conclusion on appeal, we
will not disturb it.
14
second, we ask “whether the state action at issue significantly
affected the group’s ability to advocate its viewpoints”; and
third, we “weigh[] the state’s interest implicated in its action
against the burden imposed on the associational expression to
determine if the state interest justified the burden.” Id. at 442
(citing Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)).
Assuming, without deciding, that Appellants are
members of a group that “engage[s] in constitutionally
protected expressive association,” Rule 204 does not
“significantly affect[]” their ability to advocate any
viewpoints. Pi Lambda Phi, 229 F.3d at 445. It does not
“require [Appellants] to associate with anyone,” nor is it
“directed on its face at [their] expressive or associational
activities.” Id. at 446. Again, Appellants are able to practice
law in Pennsylvania if they take the Pennsylvania bar exam or
apply for pro hac vice admission. As a result, any impact on
Appellants’ expressive activities is “indirect and attenuated”
and “do[es] not rise to the level of a constitutional violation.”
Id. at 438-39 (citing Arcara v. Cloud Books, Inc., 478 U.S.
697, 706 (1986)). Thus, Rule 204 does not violate
Appellants’ freedom of association. Accord Berch, 773 F.3d
at 1047-48.
3. Right to Petition
Lastly, we reject Appellants’ claim that Rule 204 is an
impermissible violation of their First Amendment right to
“petition the Government for a redress of grievances.” U.S.
Const. amend. I. The Petition Clause “protects the right of
individuals to appeal to courts and other forums established
by the government for resolution of legal disputes.” Borough
of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011).
Appellants provide no support for the proposition that the
15
Petition Clause protects the right of an attorney to appeal to
courts or other forums on behalf of another. Further, they
maintain the right to represent clients in Pennsylvania courts
so long as they take the bar exam or apply for pro hac vice
admission. See Berch, 773 F.3d at 1048. Simply put, Rule
204 does not violate the First Amendment.
C. Article IV Privileges and Immunities Clause
Appellants next argue that Rule 204 violates Article
IV’s Privileges and Immunities Clause by depriving them of
the right to practice law in Pennsylvania. See U.S. Const. art.
IV, § 2. While Appellants are correct that the practice of law
is a fundamental right for Privileges and Immunities
purposes, see Supreme Court of N.H. v. Piper, 470 U.S. 274,
281 (1985), the Clause does not foreclose a state’s ability to
treat residents and nonresidents differently, Saenz v. Roe, 526
U.S. 489, 502 (1999). It bars only “discrimination against
citizens of other States where there is no substantial reason
for the discrimination beyond the mere fact that they are
citizens of other States.” Id. (internal quotation mark
omitted).
In Tolchin v. Supreme Court of New Jersey, 111 F.3d
1099 (3d Cir. 1997), we established a two-part inquiry to
evaluate a Privileges and Immunities claim: First, does the
challenged rule discriminate against nonresidents? Id. at
1113. Second, if it does, is the imposition too heavy a burden
on the privileges of nonresidents, and does it bear a
substantial relationship to the state’s objective? Id. Under
this test, Rule 204 does not contravene Article IV’s Privileges
and Immunities Clause because it treats Pennsylvania
residents no differently than out-of-state residents. Rule 204
inquires not into an applicant’s state of residency, but rather,
16
his or her state of bar membership. For example, a
Pennsylvania resident barred only in New Jersey would, like
a New Jersey resident barred only in New Jersey, be unable to
join the Pennsylvania bar by motion, because New Jersey is
not a reciprocal state. As a result, this claim, too, fails.
Accord Berch, 773 F.3d at 1046.
D. Dormant Commerce Clause
Appellants’ final argument is that Rule 204 violates
the Dormant Commerce Clause. We begin by asking whether
the state law discriminates against interstate commerce on its
face or in its purpose or effect. See Heffner v. Murphy, 745
F.3d 56, 72 (3d Cir. 2014), cert. denied, 135 S. Ct. 220
(2014); Cloverland-Green Spring Dairies, Inc. v. Pa. Milk
Mktg. Bd., 462 F.3d 249, 261 (3d Cir. 2006). If it does, it is
invalid unless it “serves a legitimate local purpose” that
“could not be served as well by available nondiscriminatory
means.” Cloverland, 462 F.3d at 261 (quoting Maine v.
Taylor, 477 U.S. 131, 138 (1986)) (internal quotation mark
omitted). “By contrast, nondiscriminatory regulations that
have only incidental effects on interstate commerce are valid
unless ‘the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits.’” Or.
Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99
(1994) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970)).
We agree with the District Court that Rule 204 “does
not discriminate against out-of-state commerce on its face, . .
. [n]or is there other evidence that the purpose or effect of the
Rule is to favor in-state economic interests over out-of-state
interests.” Nat’l Ass’n for Advancement of
Multijurisdictional Practice (NAAMJP) v. Castille, 66 F.
17
Supp. 3d 633, 652 (E.D. Pa. 2014). Again, Rule 204 does not
classify applicants based on residence. Further, any
incidental effect on interstate commerce of declining to admit
by motion attorneys barred in nonreciprocal states is
mitigated by the existence of alternative means of admission,
i.e., taking the Pennsylvania bar exam, and any such effect is
not “clearly excessive” in relation to Pennsylvania’s interests
in regulating its bar and securing favorable treatment for
Pennsylvania-barred attorneys. Moreover, Rule 204
“arguably promotes some [interstate] commerce” because it
permits admission by motion for attorneys barred in thirty-
eight states and the District of Columbia, thus facilitating
their admission in Pennsylvania. Berch, 773 F.3d at 1049. It
therefore does not violate the Dormant Commerce Clause.
IV. Conclusion
For the foregoing reasons, we will affirm the District
Court’s Order.4
4
Because we reject each of Appellants’ claims, we
need not decide whether Appellees are entitled to legislative
immunity.
18