Tuesday, January 3, 2017

Some Privileges & Immunities action for y'all

The Privileges and Immunities Clause of the U.S. Constitution does not get much attention these days, but you can challenge state laws and regulations under that Clause if you are an out-of-stater and the state treats in-state people more favorably than you. That a simplified version of the P&I Clause but the point is that it ensures "the citizens of the United States [are] one people, by placing the citizens of each State upon the same footing with citizens of other States," even if people in those other states elect someone that we despise to the White House.

The case is Clement v. Durban, an Appellate Division ruling from December 21. Plaintiff is a personal injury victim. Her case was dismissed in State Supreme Court, so she wanted to take up an appeal. Since plaintiff moved to the State of Georgia while the lawsuit was pending, state law requires her to post a bond in case she loses the appeal and has to pay the defendant's costs. Is this legal? What about the P&I Clause, you know, the one that says we're on the same page, even if we live somewhere else?

The out-of-state bond requirement is legal. The Second Department summarizes how the P&I Clause works, but it cautions that strict equality is not required.

"This does not mean . . . that state citizenship or residency may never be used by a State to distinguish among persons.'" " Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.'" "Rather, . . . the Privileges and Immunities Clause protects only those privileges and immunities that are fundamental.'"
New York imposes this out-of-state bond requirement to ensure that "if he loses the case he will not return home and leave defendant with a costs judgment that can be enforced only in plaintiff's home state." The rule protects the defendant "from frivolous suits and is assured that, if successful, he will be able to recover costs from the plaintiff."

While out-of-staters have a fundamental right under the P&I Clause to sue in New York, the Supreme Court said years ago that the Clause is satisfied "if the nonresident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens." This rule of law allows New York to require the Georgia plaintiff to post a bond to ensure the prevailing defendant will recover any costs expended on appeal.

The challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts. The requirement that a nonresident plaintiff who has not been granted permission to proceed as a poor person post the modest sum of $500 as security for costs is reasonable to deter frivolous or harassing lawsuits and to prevent a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment. while the U.S. Supreme Court has never considered a direct challenge to a state statute requiring nonresident plaintiffs to post security for costs, it has cited such a requirement as an example of one that would not run afoul of the Privileges and Immunities Clause.

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