Morrison v. Board of Law Examiners , 453 F.3d 190 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN C. MORRISON, Esquire, 
Plaintiff-Appellee,
v.
BOARD OF LAW EXAMINERS OF THE
STATE OF NORTH CAROLINA; SUSAN
FREYA OLIVE; THOMAS W. STEED,
JR.; KARL ADKINS; EDWARD J.
HARPER, II; GAIL C. ARNEKE; ROBIN
L. TATUM; CATHERINE E. THOMPSON;
WILLIAM K. DAVIS; ROY W. DAVIS,  No. 05-1257
JR.; EMIL F. KRATT; SHIRLEY FULTON;
FRED P. PARKER, III, and their
successors, in their capacities as
director and/or members of the
Board of Law Examiners,
Defendants-Appellants.
ASSOCIATION OF CORPORATE COUNSEL,
Amicus Supporting Appellee.

2 MORRISON v. BOARD OF LAW EXAMINERS
STEVEN C. MORRISON, Esquire, 
Plaintiff-Appellant,
v.
BOARD OF LAW EXAMINERS OF THE
STATE OF NORTH CAROLINA; SUSAN
FREYA OLIVE; THOMAS W. STEED,
JR.; KARL ADKINS; EDWARD J.
HARPER, II; GAIL C. ARNEKE; ROBIN
L. TATUM; CATHERINE E. THOMPSON;
WILLIAM K. DAVIS; ROY W. DAVIS,  No. 05-1348
JR.; EMIL F. KRATT; SHIRLEY FULTON;
FRED P. PARKER, III, and their
successors, in their capacities as
director and/or members of the
Board of Law Examiners,
Defendants-Appellees.
ASSOCIATION OF CORPORATE COUNSEL,
Amicus Supporting Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-04-92-5-BO)
Argued: November 29, 2005
Decided: June 15, 2006
Before WIDENER and SHEDD, Circuit Judges, and
Walter D. KELLEY, Jr., United States District Judge
for the Eastern District of Virginia, sitting by designation.
MORRISON v. BOARD OF LAW EXAMINERS 3
No. 05-1257 reversed; No. 05-1348 dismissed by published opinion.
Judge Widener wrote the opinion, in which Judge Shedd and Judge
Kelley concurred.
COUNSEL
ARGUED: David J. Adinolfi, II, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants/Cross-Appellees. Steven C. Morrison, Holly
Springs, North Carolina, for Appellee/Cross-Appellant. ON BRIEF:
Geri S. Krauss, Anthony E. Davis, HINSHAW & CULBERTSON,
L.L.P., New York, New York; Michael L. Shor, CHARLOTTE
CHAPTER OF ASSOCIATION OF CORPORATE COUNSEL,
Charlotte, North Carolina; Brian Klemm, RESEARCH TRIANGLE
AREA CHAPTER OF ASSOCIATION OF CORPORATE COUN-
SEL, Cary, North Carolina; Susan Hackett, ASSOCIATION OF
CORPORATE COUNSEL, Washington, D.C., for Amicus Support-
ing Appellee/Cross-Appellant.
OPINION
WIDENER, Circuit Judge:
In this 42 U.S.C. § 1983 case, Steven C. Morrison, an attorney,
filed suit alleging that the requirements by the Board of Bar Examin-
ers for obtaining comity admission to practice law in North Carolina
under its Rule .0502(3) violate the Privileges and Immunities Clause
of Article IV, § 2; the Equal Protection Clause of the Fourteenth
Amendment; and the Privileges or Immunities Clause of the Four-
teenth Amendment. On cross-motions for summary judgment, the dis-
trict court found that the state prior practice requirement violated
Morrison’s right to travel under those Constitutional provisions and
ordered the North Carolina Board of Law Examiners to admit him.
Morrison v. Board of Law Examiners, 360 F. Supp. 2d 751, 759
(E.D.N.C. 2005). Because we are of opinion that the district court
erroneously held that North Carolina could not constitutionally condi-
4 MORRISON v. BOARD OF LAW EXAMINERS
tion its grant of comity on practicing in a State with comity for a
given number of years, we reverse.1
I.
Morrison graduated with honors from Indiana University School of
Law in 1979. He was admitted to practice law in Indiana in 1979,
Ohio in 1981, and California in 1985. Until he moved to California
in 1984, Morrison maintained law offices in both Indiana and Ohio.
He moved to North Carolina in July of 2000 and has lived there since.
Morrison submitted a comity application for admission to the North
Carolina Bar on December 13, 2003. For six years prior to filing his
application, Morrison practiced law in both California and as in-house
counsel in North Carolina.
North Carolina Board of Law Examiners Rule .0502 lists the
requirements necessary for obtaining a comity admission. Subpart (3)
of that rule requires that the applicant,
[p]rove to the satisfaction of the Board that the applicant is
duly licensed to practice law in a state, or territory of the
United States, or the District of Columbia having comity
with North Carolina and that in such state, or territory of the
United States, or the District of Columbia, while so licensed
therein, the applicant has been for at least four out of the last
six years, immediately preceding the filing of this applica-
tion with the Secretary, actively and substantially engaged
in the full-time practice of law.
1
Plaintiff’s complaint took the position that any grant of comity by
North Carolina for one State, but not for another, for licensed attorneys
would be invalid. In its opinion, the district court dismissed this claim
because it found that plaintiff had suffered no injury from that require-
ment, obviously referring to Article III injury. A.115. Plaintiff takes
exception to that dismissal. Because a dismissal in his cross-appeal for
such want of injury is a Constitutional question with jurisdictional conse-
quences, we do not decide that question on appeal but reach the merits
of the other question in the case under Bell v. Hood, 327 U.S. 628(1946). Ashwander v. TVA, 297 U.S. 288, 346, Rule 2 (Justice Brandeis
concurring) also is applicable.
MORRISON v. BOARD OF LAW EXAMINERS 5
N.C.B.L.E. Rule .0502(3).
On January 20, 2004, the Board advised Morrison that his applica-
tion for a comity admission was denied. The Board denied his appli-
cation because for four of the six years preceding his application to
the Board, Morrison had practiced in a State which did not have com-
ity with North Carolina, namely California.
On February 11, 2004, Morrison filed this suit pursuant to 42
U.S.C. § 1983, alleging that both the requirement that he be admitted
to practice in a State having comity with North Carolina, and the
requirement that he have practiced for four of the past six years in that
State, violate the United States Constitution, particularly the Privi-
leges and Immunities Clause of Article IV, § 2; the Equal Protection
Clause of the Fourteenth Amendment; and the Privileges or Immuni-
ties Clause of the Fourteenth Amendment.
The district court granted Morrison’s motion for summary judg-
ment challenging the Board’s requirement that he practice in a spe-
cific jurisdiction before obtaining a comity admission. (J.A. 110) The
district court also granted the Board’s motion for summary judgment
as to Morrison’s challenge to the comity requirement. Thus, the dis-
trict court entered declaratory judgment that the Board’s Rule
.0502(3) is unconstitutional as applied to Morrison because it requires
comity applicants, who are admitted in a comity jurisdiction and have
practiced law for four of the immediately preceding six years, to have
practiced in a certain jurisdiction. The district court permanently
enjoined the Board from enforcing Rule .0502(3) against Morrison.
Finally, because Morrison was otherwise qualified pursuant to Rule
.0502(3), the district court ordered the Board to extend him a comity
admission. This appeal by the Board and cross appeal by Morrison
followed.
II.
We review de novo this determination of the validity of the North
Carolina regulation involved as we would a district court’s determina-
tion of the Constitutionality of a state statute. See McLaughlin v.
North Carolina Board of Elections, 65 F.3d 1215, 1221 (4th Cir.
1995).
6 MORRISON v. BOARD OF LAW EXAMINERS
The Board contends that Rule .0502(3) is constitutional, arguing
that Morrison has been treated equally with all North Carolina resi-
dents. North Carolina residents do not have an advantage over any
other State’s applicants for comity admission to the bar. Instead, the
Board’s rule treats differently persons actively and substantially prac-
ticing law in a State having comity from those practicing in a State
that does not have comity, which is neither an equal protection viola-
tion nor a violation of the privileges and immunities clause, according
to the Board. We agree.
As this court stated in Hawkins v. Moss,
The power of the courts of each state to establish their own
rules of qualification for the practice of law within their
jurisdiction, subject only to the requirements of the due pro-
cess or equal protection clauses of the Fourteenth Amend-
ment, is beyond controversy; in fact, it is a power in the
exercise of which the state has "a substantial interest."
Hawkins, 503 F.2d 1171, 1175 (4th Cir. 1974) (citation omitted).2
Here, Rule .0502(3) requires that the applicant be licensed to practice
law in a State having comity with North Carolina and that the appli-
cant has been actively and substantially engaged in the full-time prac-
tice of law in that State for at least four of the last six years
immediately preceding the application.
Comity requirements have been upheld time and again. In Haw-
kins, a case factually very similar to the present one, a New Jersey
attorney established a residence in South Carolina and sought admis-
sion to the South Carolina Bar on motion. He challenged the constitu-
tionality of a South Carolina Supreme Court rule which allowed a bar
exam exemption to those attorneys admitted to practice in a State
granting reciprocity to South Carolina attorneys. The district court
found that the rule did not violate the constitutional rights of individu-
als, such as the plaintiff, licensed by States, such as New Jersey, not
2
Hawkins is a case involving the validity of the South Carolina comity
Rule 10, which was similar to, but not the same as, the North Carolina
rule involved here. For a collection of cases on the subject, we refer to
Judge Russell’s opinion in Hawkins.
MORRISON v. BOARD OF LAW EXAMINERS 7
granting reciprocity and this court affirmed. See also Brown v.
Supreme Court of Virginia, 359 F. Supp. 549 (1973) (a three-judge
district court case).
We observed in Hawkins,
It is a familiar rule of constitutional law that a statute or rule
promulgated under state authority will be found to violate
equal protection only when it results in discrimination
against a certain class and the classification is not rationally
related to any legitimate state policy or interest.
Hawkins, 503 F.2d at 1177 (citations omitted). "Reciprocal statutes or
regulations, it has been uniformly upheld, are designed to meet a
legitimate state goal and are related to a legitimate state interest. For
this reason, they have been found invulnerable to constitutional attack
on equal protection grounds." Hawkins, 503 F.2d at 1178. Moreover,
the "mere fact that they ‘affect some groups of citizens differently
than others’ or that they ‘result in "incidental individual inequality"’
will not render such statutes or rules invalid." Hawkins, 503 F.2d at
1177 (quoting Martin v. Walton, 368 U.S. 25, 26 (1961)).
Here, Rule .0502(3) requires that applicants be licensed in a State
having comity with North Carolina and have practiced for at least
four out of the last six years in such a reciprocal State. This require-
ment affects Morrison because he most recently practiced in Califor-
nia, a non-comity state with North Carolina. However, the negative
impact on Morrison does not render the rule invalid. North Carolina
is not discriminating against citizens of other States in favor of her
own. The rule simply represents North Carolina’s "undertaking to
secure for its citizens an advantage by offering that advantage to citi-
zens of any other state on condition that the other state make a similar
grant." Hawkins, 503 F.2d at 1176-77.
Morrison and the district court insist that Rule .0502(3) includes a
residency requirement, which "implicates the Fourteenth
Amendment-protected third component of the right to travel" under
the privileges and immunities clause of Article IV and the Fourteenth
Amendment. First, Rule .0502(3) contains no residency requirement.
Just as importantly, Hawkins decided the "privileges and immunities"
8 MORRISON v. BOARD OF LAW EXAMINERS
provision of the Fourteenth Amendment provides no Constitutional
base for an attack on the Rule." Hawkins, 503 F.2d at 1178. More-
over,
the right of federal citizenship as reflected in the "right to
travel" and as protected by this provision is not to be con-
strued to mean that a citizen carries with him from state to
state an absolute right of comity to practice, not a "common
occupation", but a profession, which is properly subject to
state regulation, in any state to which he travels . . .
Hawkins, 503 F.2d at 1178-79. Also of importance is that, Rule
.0502(3) treats Morrison no differently than it treats North Carolina
citizens and residents. Rule .0502(3) requires all applicants seeking
comity admission to have practiced in the comity state for four of the
prior six years. "Thus, whether he be a life-long citizen of [North]
Carolina or an individual who, like the plaintiff, has just moved to
[North] Carolina, his rights under Rule [.0502] are identical." Haw-
kins, 503 F.2d at 1180. "So long, then, as the State does not subject
the migrant attorney, seeking the right to practice in the State, to no
more onerous requirements than those imposed on its own citizens
seeking such right, it cannot be said that the State has violated" Arti-
cle IV, § 2. Hawkins, 503 F.2d at 1179-80.
Morrison has been held to no more onerous requirements for
admission to the North Carolina bar than any citizen of North Caro-
lina. Simply because he practiced in California, a state not having rec-
iprocity with North Carolina, for four of the last six years, does not
mean that his constitutional rights have been violated. He does not
meet the requirements of the North Carolina Board of Bar Examiners
Rule .0502(3), a valid rule. Thus, he must seek an alternative method
of gaining admission, such as taking the bar exam, as do all the other
North Carolina lawyers similarly situated. We are of opinion and hold
that Rule .0502(3) is valid.
Accordingly, the judgment of the district court in case No. 05-1257
is
REVERSED.
MORRISON v. BOARD OF LAW EXAMINERS 9
The appeal in case No. 05-1348 is
DISMISSED.