This title phrase, glommed from the non-precedential decision of the Third Circuit in State Troopers v. New Jersey, says way more than the court intended.  The case involves New Jersey State Troopers who went to law school on the public teet, gun and shield in hand.  Once possessed of a shiny new law license, they did what any new lawyer would do: They used it to make money.

Troopers in New Jersey have long been the subject of scrutiny for their incredibly high rates of stopping cars driven on the Turnpike by people of darker shades.  They were accused of profiling then.  Now, they just stop them to find out if they need a will, or maybe a house closing.  The State of New Jersey decided that its full time employees would no longer be permitted to moonlight as lawyers because of the potential conflict of interest.

The Third Circuit upheld the state’s decision.

[T]he District Court properly concluded that the state’s decision to single out the legal profession is rationally related to its ethical concerns. The Code provision prohibiting Troopers from outside legal practice is far from perfectly crafted. It is simultaneously overinclusive — in that it prohibits all part-time legal work — and underinclusive — in that DLPS employees are still permitted to engage in non-legal outside employment where the risk of ethical conflict is high. Nonetheless, the District Court did not err in concluding that the provision withstands rational basis review. “`Even if the classification involved . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that . . . perfection is by no means required.”

The decision is clearly correct, on both its over and under inclusiveness points.  As for the practice of law, there’s no likely harm in allowing a trooper to do a simple will, unless the testator refuses to pay and he pulls his weapon.  On the other hand, there could be a huge conflict if the trooper does some traffic court defense in his spare time.  Less obvious is when the trooper suggests to opposing counsel that his client is committing perjury, and he’s duty sworn to arrest him for it. 

There could be some expectation that trooper/lawyers, like lawyers in general and troopers in general, should be expected to exercise a level of discretion that would enable them to make the decision to take or not, stay or withdraw, if a conflict arises.  Both positions require the exercise of discretion.  Apparently, New Jersey has decided that their troopers can’t be trusted to make the right choice.

But as the court also notes, they may be prohibited from moonlighting as a lawyer, but that doesn’t stop troopers for renting their state-issued gun and shield in a wide variety of other money-making pursuits.  Moonlighting is a fundamental perk of policing.  Between the nature of shifts, and the expectation of retirement while still young and virile, it’s taken for granted that a trooper will find a profitable way to spend his off hours.  And why not? 

The opportunity is too good to pass up, and while the salary and benefits (including law school well before the pension kicks in) may be sweet, it’s hardly comparable to a Wall Street bonus.  But conflicts abound.  Whether it’s security services, a natural, or carpentry, it never hurts to have the ability to arrest anyone who questions the bill. 

Why should New Jersey be allowed to restrict troopers from the practice of law when they allow them to moonlight otherwise?  This gave rise to the claim under the equal protection clause, dictating that “all persons similarly situated should be treated alike.” When the subject is not a member of a suspect class (and no, troopers are not a “suspect class” as used in this context), the test is mere rational basis.

However, plaintiffs have not demonstrated, as they must to overcome rational basis review, that no “`reasonably conceivable state of facts'” could support a rational basis for the revised Code’s classification.

The equal protection clause of the 14th Amendment to the United States Constitution strikes most people as embodying a very basic, very important right. 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like so many “rights”, it sounds incredibly important.  Like so many rights, it’s so terribly weak in practice.  For “suspect classifications,” such as race, national origin and gender, the right has some bite.  For race, the test is strict scrutiny.  Gender gets intermediate scrutiny.  Troopers get rational basis.  In other words, any explanation better than arbitrary and capricious will suffice.

While many won’t feel great pain at the inability of troopers to practice law on the side, and may even feel a certain schadenfreude at the outcome, the law is tested through the worst of litigants.  Sometimes it’s our criminal defendants.  Sometimes its New Jersey State Troopers.  While the decision is curiously non-precedential, it remains instructive. 

The court characterizes the New Jersey prohibition as “far from perfect.”  This is hardly a ringing endorsement.  Had the court put its opinion in the affirmative, it would have said that it sucks.  The State of New Jersey took a baseball bat, closed its eyes and swung.  Fair or foul, as long as it comes anywhere near the ball, it’s a home run.  The promise of equal protection is so fragile that it’s essentially impossible to miss.

It’s not that laws must be perfect to withstand an equal protection challenge, but that they should be better than a whiff.  How difficult would it have been for the State of New Jersey to promulgate rules that would allow troopers to engage in non-litigation, with a required disclaimer?  Or how about prohibiting them from any outside employment that involves the use of a gun and shield?  There are plenty of ways to make this better, to come a whole lot closer to providing the constitutional promise of equal protection.

But “perfection is by no means required.”  And therefore, there’s no reason to strive for perfection, which guarantees that it will never be achieved.

H/T John Steele and Jonathan Adler