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MARTIN v. WALTON, PROBATE JUDGE OF JOHNSON COUNTY, KANSAS.
APPEAL FROM THE SUPREME COURT OF KANSAS.
Argued October 17, 1961.
Decided November 6, 1961.
Under a Kansas statute and rules promulgated by the Supreme Court of Kansas, a resident of Kansas who was duly licensed to practice law in both Kansas and Missouri and maintained law offices in both States was denied the right to appear in a Kansas court without associating local counsel, solely because he practiced regularly in Missouri. Held: The state statute and rules are not beyond the allowable range of state action under the Fourteenth Amendment, and this appeal is dismissed for want of a substantial federal question. Pp. 25-26.
187 Kan. 473, 357 P.2d 782, appeal dismissed.
Howard E. Payne argued the cause for appellant. With him on the briefs were F. L. Hagaman and John Scurlock.
J. Donald Lysaught argued the cause for appellee. With him on the brief were Hugh H. Kreamer, Bernhard W. Alden and Kenneth C. McGuiness.
A brief was filed by William M. Ferguson, Attorney General of Kansas, and A. K. Stavely, Assistant Attorney General, on behalf of the State of Kansas, as amicus curiae.
The appeal is dismissed for want of a substantial federal question. Upon plenary consideration, we are satisfied that, both on their face and as applied to appellant, Kan. Gen. Stat., 1949, 7-104, and amended Kan. Sup. Ct. Rules 41 and 54 promulgated by the Supreme Court of Kansas, acting within its competence under state law, are not beyond the allowable range of [368 U.S. 25, 26] state action under the Fourteenth Amendment. See, e. g., Dent v. West Virginia, 129 U.S. 114 ; Graves v. Minnesota, 272 U.S. 425 ; Schware v. Board of Bar Examiners, 353 U.S. 232, 239 ; Hitchcock v. Collenberg, 353 U.S. 919 ; Kovrak v. Ginsburg, 358 U.S. 52 . We cannot disregard the reasons given by the Kansas Supreme Court for the Rules in question. 187 Kan. 473, 357 P.2d 782. Nor does the fact that the Rules may result in "incidental individual inequality" make them offensive to the Fourteenth Amendment. Phelps v. Board of Education, 300 U.S. 319, 324 .
THE CHIEF JUSTICE concurs in the result.
MR. JUSTICE WHITTAKER took no part in the disposition of this case.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
If this were a case where an attorney, though a member of the Kansas Bar, practiced law only in Missouri, the reasons for Rules 41 and 54, * as declared by the Kansas Supreme Court, would be adequate to sustain them. For [368 U.S. 25, 27] we are told by that court that they were designed "to provide litigants in (Kansas) tribunals with the service of a resident attorney familiar with local rules, procedure and practice and upon whom service may be had in all matters connected with actions or proceedings proper to be served upon an attorney of record." 187 Kan. 473, 485, 357 P.2d 782, 791.
But the facts assumed are not the facts of this case. The facts alleged in the petition for writ of mandamus, which are assumed to be true by the motion to quash, show the following: Petitioner, since 1948, has continuously maintained law offices and had a general practice of law both in Kansas City, Missouri, and in Mission, Kansas, the latter being a suburb of Kansas City, Missouri. Petitioner's home is Mission, Kansas. He is City Attorney for Mission and a member of the Board of Tax Appeals of Kansas. Many of his clients live in one State and work in the other. Their problems involve the laws and procedures of both States. He consults with as many clients in his Kansas office or home as in his Missouri office. About one-half of his earned income is derived from his Kansas practice, a large portion of which consists of practice in the probate court. To use the words of the Kansas Supreme Court, quoted above, petitioner is a "resident attorney familiar with local rules, procedure and practice and upon whom service may be had in all matters."
Four other factors were mentioned by the Kansas Supreme Court in sustaining these Rules:
If Kansas can deny this lawyer his livelihood, so can Missouri. When Kansas denies him the right to pursue his livelihood, it destroys his competence for reasons that have no relation to competency. States have great leeway in making classifications, in providing general rules, in differentiating evils by broad lines or by narrow ones. Where, however, a State declares what purpose the law has, no room is left to conceive of any other purpose it may serve. See Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 530 . A law, fair on its face, may be applied in a way that violates the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 373 -374. Here the law as applied has no relation whatsoever to the declared evil at which the law was aimed. It is, therefore, invidious in its application, striking without reason at a citizen's activities which touch several States, as constitutionally they are entitled to do under our federal regime. Cf. Edwards v. California, 314 U.S. 160 . [368 U.S. 25, 29]
As we said in Schware v. Board of Bar Examiners, 353 U.S. 232, 239 :
[ Footnote * ] Rule 41 provides in relevant part: