Bernal v. Fainter

LOCATION: Men’s Central Jail

DOCKET NO.: 83-630
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 467 US 216 (1984)
ARGUED: Mar 28, 1984
DECIDED: May 30, 1984

Cornish F. Hitchcock - on behalf of Petitioner
Mary F. Keller - on behalf of Respondents

Facts of the case


Media for Bernal v. Fainter

Audio Transcription for Oral Argument - March 28, 1984 in Bernal v. Fainter

Warren E. Burger:

We will hear arguments next in Bernal against Fainter et al.--

Mary F. Keller:

Yes, Your Honor, there is.

Warren E. Burger:

We'll wait until the noise is dispensed with.

Mr. Hitchcock, I think you may proceed whenever you're ready.

Cornish F. Hitchcock:

Thank you, Mr. Chief Justice, and may it please the Court:

Eleven years ago in the case of In Re Griffiths, this Court held that it was a violation of the equal protection clause for a state to require United States citizenship as a condition for being admitted to a state bar.

The question before the Court today is whether, in light of the Griffiths decision, a state may constitutionally require citizenship as a condition for being licensed as a notary public.

The Petitioner in this case is a lawful resident alien who in 1978 applied to the Texas state authorities for a license as a notary public, and he desired to use license in connection with his job as a paralegal with a legal aid organization in Texas.

The state authorities denied his application solely on the basis that he was not a United States citizen and therefore ineligible under the statute at issue before you.

This Court has indicated that in assessing state classifications and restrictions involving aliens, the general standard of review is strict scrutiny, although there are exceptions in some areas.

For example, the Court has held that states are able to deny aliens certain rights, such as voting or running for elective office.

And especially pertinent for today's case is the Court's holdings that citizenship may be a relevant factor if the state imposes the restriction in connection with certain appointive positions where the individual is exercising powers of the state that go to the heart of representative self-government.

Our position is that the statute in this case is to be judged under the strict scrutiny standard of Griffiths, but even under the more deferential standard applied for certain of these appointive positions we are still entitled to prevail.

Let me focus for a minute, if I may, on the qualifications it takes to become a notary public in Texas and also on the nature of the function.

In order to become a notary public in the State of Texas, one must fill out a one-page application... and Mr. Bernal's application is part of the record... that gives one's name, address, and requires the answers to four questions: Are you 18 years of age; are you a citizen of the United States of America and Texas; are you a resident of the county for which you are applying; have you ever been convicted of a crime involving moral turpitude?

There's a requirement of notifying the Secretary of State and the county clerk of any changes of address.

What's interesting is what is not required.

There is no requirement that one say one is familiar with what a notary does in Texas, nor, interestingly enough, is there a requirement that the application be notarized.

The functions of a notary are relatively straightforward.

A notary in Texas is allowed to witness signatures on documents, to administer oaths, take depositions, and authenticate documents.

And the nature of the functions of this office are important because the Court has discussed these in a number of situations when the lesser standard of review has been applied.

William J. Brennan, Jr.:

Do those functions differ much from the functions of notaries public generally?

Cornish F. Hitchcock:

No, they are rather similar to the functions of notary publics.

They are similar to the functions that Mr. Bernal performed when he was a notary public in Indiana four years, and they're also identical to the functions that are performed by commissioners of the superior court, an office to which lawyers are appointed in Connecticut, which was in the Griffiths case.

Sandra Day O'Connor:

Mr. Hitchcock, what difference does it make that the notaries public in Texas are constitutional officers--

Cornish F. Hitchcock:

In our view--

Sandra Day O'Connor:

--as opposed to statutory authorization, such as in Griffiths?

Cornish F. Hitchcock:

--In our view, Justice O'Connor, there is no difference between the fact that an office is created in the constitution and the fact that the office, such as commissioner of the superior court, is created by statute.

Sandra Day O'Connor:

Well, does it indicate that the state considers the office more important?

Cornish F. Hitchcock:

I would say it indicates that the state does consider the office slightly more important.