Bernal v. Fainter

PETITIONER:Bernal
RESPONDENT: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

ADVOCATES:
Cornish F. Hitchcock – on behalf of Petitioner
Mary F. Keller – on behalf of Respondents

Facts of the case

Question

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.

Cornish F. Hitchcock:

But I think it’s important to focus on the nature of what the statute and the constitutional provision are involved here.

In the first place, the Texas constitution merely states that the office is created, and there is discretion that is left to the legislature to decide the qualifications, the standards, what regulation should be imposed.

Interestingly enough for this case, the state’s argument that this is an important position because it is in the state constitution really cuts both ways.

It took a century before, until 1945 at least, that a residency requirement was imposed by the Texas legislature, that one be a citizen of the state, an ambiguous phrase at the time.

Citizenship of the United States was not required until 1965.

So in that sense the argument does cut both ways.

One final point, if I may.

The state’s argument that this is an important post because it’s in the constitution has the problem with it that what the state is saying in effect is that, we have greater discretion to discriminate provided we name the post in our state constitution.

And we’re not aware of any authority that gives the state that leeway, and there would be the potential hazard that states would seek to get more deferential review by simply naming posts in their constitution.

With respect to the Griffiths case, the office of commissioner of the superior court was a public office, it was created by the statute.

Now, the restriction in Griffiths on being admitted to the state bar carried with it the restriction on being a commissioner of the superior court, and let me focus specifically on what a commissioner of the superior court does.

Despite the very grandiose name, the commissioner of the superior court is essentially a notary public, and lawyers sign documents, notarize documents in Connecticut as commissioners of the superior court with their own signature.

They don’t need a seal.

When one is admitted to the Connecticut bar as an attorney, one takes a second oath immediately after that attorney oath as a commissioner of the superior court, and that is the nature of the office.

What’s important about Griffiths and important about the restriction with respect to commissioners of the superior court is that the State of Connecticut in Griffiths raised precisely the same arguments that are being advanced here, that lawyers as commissioners of the superior court are being entrusted with the actual performance of government power and that the state has given meaning to the phrase that they are officers of the court.

And this Court answered the question in language which we think is highly pertinent here, where the Court said that giving a lawyer the authority to issue writs and subpoenas or to witness signatures or to administer oaths is not a matter of state policy or a matter of such unique responsibility that only citizens can be entrusted with that responsibility.

In light of the similarities between what Texas notaries public do and Connecticut commissioners of the superior court do, we submit that Griffiths is controlling and that the statute should be judged on constitutional… under strict scrutiny.

The state here has presented no evidence that aliens as a class are so untrustworthy, disloyal to the United States, or incompetent that they must all be excluded from performing this role, from administering oaths, from witnessing signatures, and so forth.

The Secretary of the State has the power to issue qualifications.

There’s a bonding requirement, a recordkeeping requirement, civil liability for negligence or for intentional wrongdoing, and criminal liability.

These are the sorts of regulations that should assure proper performance regardless of citizenship.

If the state’s argument is accepted in this case, what will happen is a very curious anomaly.

Under the state’s argument, an alien in the State of Texas can go to law school, can be admitted to the Texas bar, can practice law, and can draft a whole host of legal documents that have a significant impact on the public.

But that alien, that lawyer, will not be able to notarize the documents that he or she has drafted.

We believe that this anomaly is inconsistent with the equal protection standards of this Court and that it should be struck down under the strict scrutiny test.

Let me turn now, if I may, to the state’s argument that a more deferential standard of review is appropriate here because we’re dealing with an office involving execution or formulation of policy factors that go to the heart of representative self-government.

This Court indicated in Sugarman against Dougall and most recently in Cabell versus Chavez-Salido that there are two standards that must be met.

First, in order to take advantage of this more deferential standard, the state must show that the restriction is sufficiently tailored to meet its ends, that it’s not over-inclusive or under-inclusive; and secondly, that we really are dealing with one of these significant sovereign functions of the government.

The restriction in this case fails on both counts.

The restriction is over-inclusive because it denies qualified resident aliens such as Mr. Bernal, who performed the functions of a notary for four years in Indiana, the opportunity to get a commission.

Cornish F. Hitchcock:

And it’s also under-inclusive because there’s another state office which performs similar functions, the office of court reporter.

Court reporters are officers of the state.

They are licensed by the state.

There, I believe, is a committee to deal with unauthorized practice of court reporting.

And they certainly perform functions that we find it hard to believe are less important than those that are performed by notaries public.

But however, these court reporters are not required to be citizens.

Finally, there is another anomaly here, that the Secretary of the State of Texas, who actually is responsible for licensing notaries, is not required to be a citizen.

What the Texas statutory scheme has done is what was aptly described in Cabell: The state has indiscriminately swept in a variety of menial occupations, while leaving out some of the state’s most important political functions.

Turning now to the second part of the standard, the application of the Sugarman exception for sovereign functions of government.

There are several common themes that run through the Court’s cases in which this restriction, in which this lower standard, more deferential standard, has been applied.

In the first case, the cases where the standard has been applied involving policemen, school teachers, deputy probation officers, all involved public employees, state municipal employees, who were on a public payroll.

Harry A. Blackmun:

Do you think all those cases are consistent?

Cornish F. Hitchcock:

Well, I think that if some of the cases had come out differently we would have an easier time in this case, Justice Blackmun.

But your question leads me to the other common threads here.

What the Court has done is identified several important functions, two important functions, law enforcement and education, and has allowed there to be restrictions in deference because of the importance of law enforcement and education to the exercise of the state’s functions.

Harry A. Blackmun:

I suppose it’s fair to say the Court’s been cutting back from what, a more extreme position taken in Griffiths?

Cornish F. Hitchcock:

Well, the restrictions have… the last three cases have applied a more deferential standard and have upheld the restrictions.

Our position again is that this case is governed by strict scrutiny and this discussion of the more deferential standard comes in only if the Court says that strict scrutiny is not applicable in this situation.

Harry A. Blackmun:

Do you think this case can stand without Griffiths in effect being overruled?

Cornish F. Hitchcock:

No, Griffiths would have to be overruled in order for the state to prevail in this particular action.

The other thread that I was referring to is that we are dealing with functions that go to the sovereign functions of government, the exercise by the state entrusting individuals with the performance of state functions.

It’s one thing to give individuals the power to build bridges, such as civil engineers do in Flores de Otero, but when engineers build bridges they’re not exercising the sovereign function of the state even though they’re licensed by the state.

When lawyers draft contracts, they may be licensed to do that, but they’re not exercising sovereign power.

Warren E. Burger:

Well, how about roads?

I thought roads and bridges were a sovereign function now in this country.

Cornish F. Hitchcock:

Well, they’ve always been performed… they are public works, but it’s not exercising the sovereign function of the government that goes to–

Warren E. Burger:

You mean the building of a road is not exercising a sovereign power?

Cornish F. Hitchcock:

–Not in the sense that it has been used in the descriptions, in the standards set forth in the decisions of the Court.

Conceivably, if building a road is regarded as a sovereign function, the people who are building the road might be regarded as sort of employees.

Warren E. Burger:

Governments always have to hire people to do their work.

Warren E. Burger:

They even hire… the governor of a state is hired by the people, but that doesn’t make him any less sovereign, does it?

Cornish F. Hitchcock:

Chief Justice Burger, the difference tends to be, as the Court recognized in Sugarman, that there are differences between the functions that are performed by different state employees.

The point that I am making is that there is a world of difference between the situation in which policemen are authorized to make arrests and deprive people of their liberty in the name of the state and the situation in which a notary public is authorized to tell someone to raise their right hand and take an oath or to witness a signature on a document.

That is the distinction which is important, which separates this case from the cases where the more deferential standard has been applied.

Finally, even if the Court should apply the more deferential standard of review to this restriction involving aliens, we submit that we are still entitled to prevail because there is no rational basis for this particular blanket exclusion.

The state has presented no evidence that excluding all aliens, discriminating against all aliens, rationally advances the legitimate state interest with respect to having documents properly processed or the other interests that have been identified in this case.

If the Court has no further questions at this point, we would respectfully like to reserve the remainder of the time for rebuttal.

Warren E. Burger:

Ms. Keller.

Mary F. Keller:

Mr. Chief Justice and may it please the Court:

To resolve this case, there are basically two inquiries that need to be made.

The first inquiry is, does the Texas office of notary public come within the governmental function principle recognized in Sugarman and refined in Cabell?

And if it does, the second inquiry is, does the requirement of citizenship bear a rational relationship to legitimate state interests?

It is certain that Texas recognizes the office of notary public as performing a governmental function.

The State of Texas is one of six states to provide for the office of notary public in its constitution, beginning with the constitution of 1845.

Harry A. Blackmun:

Of what significance is that?

Mary F. Keller:

Your Honor, the significance is that historically Texas has considered the office of notary public to be a public office, one that the state gives high regard to.

There would be only six per county.

The constitution does not name very many public officers in its constitution and this happens to be one of them.

It is only one of many factors which lend credence to the statement–

Harry A. Blackmun:

Does the holder get a special title, so that you call him Mr. Notary Public> [“] instead of Mr. Jones> [“]?

Mary F. Keller:

–I’m certain that a notary could insist on it.

It does not appear in any cases that I have read.

Harry A. Blackmun:

And yet, in your state most lawyers are called “Judge”, aren’t they?

[Laughter]

Mary F. Keller:

That is true, Your Honor.

The interpretive commentary to the Texas–

Sandra Day O’Connor:

There are quite a few more notaries today than six per county, I take it?

The role has changed somewhat over the years in Texas.

Mary F. Keller:

–Yes, Your Honor, there are quite a few more notaries.

It’s not that the role–

Sandra Day O’Connor:

For instance, how many today in the State of Texas?

Mary F. Keller:

–I believe, reading Petitioner’s brief, that there are in excess of 100,000.

Maybe there are 300,000 notaries.

And it’s not so much that the role has changed, Your Honor; it’s that Texas is becoming–

Sandra Day O’Connor:

Well, let’s say the significance of the office has been diluted somewhat.

Mary F. Keller:

–There are many more–

[Laughter]

Yes, Your Honor, there are many more significant officeholders now in Texas, and it reflects to a large extent the industrialization of Texas and the need for many more public officeholders to do the functions that the State of Texas has authorized the notary to do.

John Paul Stevens:

May I go back to the 1845 constitution for a minute.

Are we to believe that that provision really was enforced, that the notary was appointed by and with the consent of the senate on a two-thirds vote?

Mary F. Keller:

Yes, Your Honor, until 1940.

John Paul Stevens:

Until 1940.

Mary F. Keller:

Yes.

John Paul Stevens:

That must have been a busy legislature.

Mary F. Keller:

Very busy legislature.

[Laughter]

But it shows… I think what all this shows is that there is no set job of notary public across the country; that in fact Texas has a special place for its notary publics, notaries public; that it gives them a great deal of authority; that it puts it in its constitution; that it gives them a commission of the state, a commission that requires that they are acting by the authority of the State of Texas, with the seal of the State of Texas.

Sandra Day O’Connor:

In what ways do the actual functions and authority of notaries in Texas differ from those in Connecticut?

Specifically hew would their functions and authority differ?

Mary F. Keller:

Your Honor, I am not completely familiar with the functions of notaries in other states.

I would say–

Sandra Day O’Connor:

Well, I picked in Connecticut because of course that is where Griffiths was decided.

Mary F. Keller:

–Right.

Sandra Day O’Connor:

And it might be closely reviewed.

Mary F. Keller:

Yes.

In Texas there are only three offices which can take acknowledgment of written instruments for the purpose of recording.

They are the district clerk, the judge or the county clerk… the county judge or county clerk, or the notary.

So to get a written instrument recorded in Texas, there are only three officeholders that you can go to.

As part of taking–

Harry A. Blackmun:

Is that special to Texas?

Mary F. Keller:

–Your Honor, I found it to be very unusual, because, as we all know, there are deeds and mortgages that need to be recorded every day, and to limit it to three officeholders seemed unusual to me.

Sandra Day O’Connor:

And that isn’t true in most states in your view?

Mary F. Keller:

As far as I know not, Your Honor.

In looking at the Connecticut statutory scheme, it did not appear to be the case there.

Sandra Day O’Connor:

And who else was authorized in Connecticut that you found in your review?

Mary F. Keller:

I’m don’t know, Your Honor.

As part of the process of–

Harry A. Blackmun:

Well, I would suspect that everybody on this bench has been a notary public at one time or another, and I would suspect that their certificates read something like this: That I, so and so, governor of the state of, imposing special trust and confidence in, do hereby appoint you a notary public.

Do you think this is less serious than they take it in Texas?

Mary F. Keller:

–The only response I can make to that, Your Honor, is that Texas takes it seriously.

I don’t know that other states take it less seriously, but Texas takes its notaries public very seriously.

I think part of it is it is a border state.

It has a great deal of influence coming from Mexico, where the office of notario publico is a very important office, much more analogous to attorney.

Prior to the Texas constitution of 1845, when it was a Republic, it made a special statutory designation of notaries in 1837.

Warren E. Burger:

I don’t recall from the record here.

Must the notary in Texas put up a bond?

Mary F. Keller:

Yes, Your Honor.

Warren E. Burger:

That’s true in most of the states, is it?

Mary F. Keller:

I believe it is true in most states.

Not only must the notary put up a bond, but Texas statute requires… or allows a party to sue a notary for liability in the event that the notary does not perform his or her function properly.

So there is a great incentive on the part of the notary to be well versed in Texas law prior to taking on the commission of the office of notary public.

John Paul Stevens:

Well, I suppose a lawyer can be sued for malpractice, too.

I just wonder, are you really asking us to overrule Griffiths?

Mary F. Keller:

No, Your Honor, absolutely not.

I don’t think Griffiths is controlling in any way in this case.

John Paul Stevens:

Do you think that the notary has a more significant function to play in Texas than a lawyer does?

Mary F. Keller:

It’s not a question of significance of the function.

The notary is clearly a public agent.

An attorney is just as clearly a private occupation.

It has traditionally been a private occupation.

Mary F. Keller:

The lawyer comes to the state to provide a forum, but he or she is an advocate, an adversary.

The lawyer charges whatever fee the lawyer thinks he or she can get.

The lawyers records are not public records.

In Texas the notary’s records are public.

In Texas the notary can only charge an authorized fee.

Harry A. Blackmun:

What is that fee, incidentally?

Mary F. Keller:

50 cents per notarial act.

Harry A. Blackmun:

50 cents?

Mary F. Keller:

That’s right, Your Honor.

It would be very difficult to make a living as a notary in Texas.

Harry A. Blackmun:

Well, other states are less than that and some are higher.

Mary F. Keller:

Pardon me, Your Honor?

Harry A. Blackmun:

I say other states are less than that and some are higher, so that Texas isn’t very special in that regard.

Mary F. Keller:

It’s not special, but the point is I think that the fee reflects the Texas perception that it be basically a function that a private individual performs on the behest of the state, but it is not an occupation.

It was not intended to be an occupation.

Thurgood Marshall:

Do judges have to be citizens in Texas?

Mary F. Keller:

The judges in Texas are elected, Your Honor, and as part of the election–

Thurgood Marshall:

Well, the question was–

Mary F. Keller:

–Yes, Your Honor, yes.

Thurgood Marshall:

–The statute says they have to be citizens?

Mary F. Keller:

Yes, Your Honor.

Thurgood Marshall:

Do the lawyers?

Do you think federal judges in Texas have to be citizens?

Mary F. Keller:

I don’t know that, Your Honor.

All the state judges do.

Thurgood Marshall:

Lawyers don’t have to?

Mary F. Keller:

Lawyers do not have to be, Your Honor, absolutely.

Thurgood Marshall:

Do you consider your profession below a notary’s?

[Laughter]

Mary F. Keller:

As I said, Your Honor, it’s not a question of what’s more important.

Mary F. Keller:

It’s a question that the function of the notary is a state function, and as such the state has the right to make certain qualifications for what are sovereign functions.

The lawyer is not a state actor, and as a matter of fact specifically this Court in In re Griffiths found that under state law, Connecticut state law, the lawyer was not an officeholder, was not an official of the state.

And that is a distinction with this case, because–

Sandra Day O’Connor:

Is the lawyer an officer of the court in Texas?

Mary F. Keller:

–I believe that… I don’t know that.

I don’t know that, Your Honor.

I believe that there… certainly the lawyer is regulated very extensively in Texas, must… there are canons of ethics that require disclosure to the court in certain circumstances.

But the State of Texas does not consider lawyers as officers of the State of Texas.

John Paul Stevens:

What about a prosecutor?

Does he have to be a citizen?

Mary F. Keller:

Well, to the extent that Ambach makes distinctions between public school teachers and private school teachers, it may be that a state could designate certain attorneys as public officeholders and require that they be citizens.

John Paul Stevens:

No, that wasn’t my question.

Mary F. Keller:

Oh, excuse me.

John Paul Stevens:

As a matter of Texas law, must a prosecutor be a citizen?

Mary F. Keller:

No, Your Honor.

But the elected prosecutor, the DA, the elected prosecutor would have to be a citizen, because the elected officials in Texas–

John Paul Stevens:

But he could hire assistant prosecutors who are not?

Mary F. Keller:

–Yes, Your Honor, he could.

I might also add a distinction between Griffiths and this case, and one that the Court was justly concerned with, was that to deprive Griffiths of the right to practice law would be to deprive her of a livelihood.

This is not the case here.

John Paul Stevens:

Well, I suppose there would be some jobs in which you would not be eligible for the position if you weren’t a notary.

Some law offices like to hire a secretary who’s a notary or something like that.

So it does affect job qualification, doesn’t it?

Mary F. Keller:

Your Honor, hypothetically it might, but the record before this Court includes two plaintiffs, one who became a citizen before we got here and the other who is still before the Court.

The record established in both of those cases that the Petitioners had no impact on their ability to make a livelihood; that they had continuously been hired; that being a notary was not a requirement of their job.

And as a matter of fact, Mr. Bernal testified that the reason he wanted to be a notary is it would be more convenient for him.

Texas considers the notary to be a governmental function, and in the constitution, historically, statutorily, it has consistently treated it that way.

Once the state has defined the office of notary public as one of a governmental function, of course this Court may still inquire as to whether or not citizenship is rationally related to a legitimate state interest.

The inquiry does not… this is the harder part of this case.

And basically, there are three parts in looking at whether or not there is a rational basis here: Does the notary perform functions that are so essential to representative government that it is rational to require the legal bond of citizenship?

Mary F. Keller:

That certainly would be one way for the state to establish that there is a rational basis to require citizenship.

In looking at the line of Court cases in this area, that is primarily where the attention has focused: Is there something about the job itself that rationally requires citizenship.

My reading of the cases indicates that the Court would entertain other legitimate interests that might be advanced by the requirement of citizenship.

And finally, the Court has been concerned with whether or not the classification is substantially over or under-inclusive, such that the state’s scheme is haphazard in some way.

In Cabell–

John Paul Stevens:

I’m sorry, but before you leave the first point about what the rational basis is, tell me again, what is the reason for it?

Why do you want them to be citizens?

Mary F. Keller:

–Texas has given great amounts of authority to its notaries.

John Paul Stevens:

I thought that’s how you got to the rational basis standard.

That’s your first threshold.

Mary F. Keller:

Well, Your Honor, my first threshold–

John Paul Stevens:

Once you get there, why do you have to have citizenship?

Mary F. Keller:

–My first threshold is is it a governmental function.

John Paul Stevens:

Yes, and if we answer–

Mary F. Keller:

And it’s a governmental function apart from its duties.

It’s a governmental function because Texas has recognized it as a public office.

John Paul Stevens:

–Yes, but once we get there we would say, now, having agreed with you on that, we say now we’ve got to find out what the rational basis is.

Mary F. Keller:

Right.

John Paul Stevens:

You can’t say the rational basis is that it’s a governmental function.

Mary F. Keller:

The rational basis in Ambach and Cabell was, yes, it’s a governmental function; is that function so essential to government that the legal bond of citizenship is required?

That is what the Court determined in Ambach, that’s what the Court determined in Cabell, that because of the function of the job, that it was so closely tied to the execution of policy or the formation of policy, that citizenship was rationally required because of the nature of the job.

John Paul Stevens:

Well, you’re not suggesting notaries form policy, are you?

Mary F. Keller:

Notaries do not form policy.

John Paul Stevens:

Well now, what is the reason why they have to be citizens?

I still don’t follow you.

Mary F. Keller:

Texas has given notaries a great deal of authority.

For instance–

John Paul Stevens:

That’s why it’s a governmental function.

Mary F. Keller:

–Yes, and I’m going to clarify it right now.

In authorizing notaries to take acknowledgment of written instruments for recording, the State of Texas has provided notaries with the authority to administer oaths, employ and swear interpreters, issue subpoenas, and to punish for contempt if the subpoena is ignored.

Thurgood Marshall:

And it’s so important that it’s worth 50 cents.

[Laughter]

Mary F. Keller:

Your Honor, I think the notary is very similar, similarly situated to a juror.

Jurors are paid–

Thurgood Marshall:

Well, even at that, a juror gets more than 50 cents.

[Laughter]

Mary F. Keller:

–Well this is just for one little act.

I mean, it may be that in the whole day there would be more to be made.

But jurors are not compensated nearly in relationship to their importance to the governmental function.

Thurgood Marshall:

They get more than 50 cents.

Mary F. Keller:

Well, they get ten dollars a whole day, I think, or something like that.

Thurgood Marshall:

But they get more than 50 cents.

[Laughter]

Mary F. Keller:

Yes, Your Honor, they get more than 50 cents.

But they are basically… it’s an honor to be a juror, in the same way that it’s an honor to be a notary in Texas.

It is not… notaries and jurors are not in it for the money.

They are requested by the state to perform an important governmental job, and they do so.

They are private citizens for the most part and they do so because it is an honor to do so.

Byron R. White:

Well, Ms. Keller, if we go along with you to the point that Justice Stevens took you and then said, so why does it have to be, why is citizenship required, in Cabell at that very point the Court inquired whether the position in question involves discretionary decisionmaking or execution of policy.

Now, tell me how a Texas notary performs, is involved in discretionary decisionmaking?

Mary F. Keller:

All right, Your Honor.

Byron R. White:

Because that’s part of the argument on the other side, is that this is wholly ministerial.

Mary F. Keller:

In Texas, as I was saying, under state law, in performing one of its important functions, which is preparing documents for recordation, the notary has the right to issue subpoenas to witnesses, and if they fail to come or fail to answer properly the notary has the right to punish them for contempt.

The punishment for contempt is a coercive authority of the state.

It is–

Byron R. White:

And what does that… when does the notary get involved in this function?

Mary F. Keller:

–As part of the statutory scheme for authenticating documents to be recorded, there are–

Byron R. White:

If the notary disbelieves somebody, he can get some witnesses, is that it?

Mary F. Keller:

–There are two ways to record instruments.

One is the person signing it comes forward and has it notarized.

Byron R. White:

Yes.

Mary F. Keller:

In the event that it’s already been signed and the person is deceased, there is a proof of written instrument.

Byron R. White:

So he holds… in effect, takes some evidence?

Mary F. Keller:

That’s right, Your Honor, absolutely.

Byron R. White:

Holds a… and makes a judgment.

Mary F. Keller:

That’s right, makes a judgment about whether or not this is the person who signed it, it’s an authentic document.

And as part of that authority, the notary has the right to issue a subpoena to recalcitrant witnesses and, if the witnesses fail to cooperate, has the right to hold them in contempt.

Byron R. White:

Is there anything else about the notary’s job that involves some sort of discretionary decisionmaking?

Mary F. Keller:

In taking affidavits, the notary is allowed to… is authorized by law to take oaths.

In this case the notary is required to be certain that whatever is being authorized or sworn to, that the person understands, that it is in fact the person.

There is a large… there is nobody that the notary is supervised by.

They are in many counties and there are many of them, and they are basically operating on their own.

Warren E. Burger:

Suppose two or three people come into a notary and they present a deed of a conveyance, and one of the persons being requested to sign, perhaps the wife of one of them, exhibits great reluctance.

Does the notary have an obligation in Texas to determine whether that is the free act of the person signing and swearing?

Mary F. Keller:

Yes, Your Honor, and that is another area where the notary exercises a great deal of discretion.

Warren E. Burger:

In Texas do they, as in some states in the past, are they required to take the oath of a husband and a wife separately, out of the presence of each other, so that they can determine whether the wife is making the husband sign or the husband is making the wife sign against their free will?

Mary F. Keller:

Your Honor, that had been in the Texas statutory scheme, but it has been repealed.

It no longer makes that kind of requirement.

Warren E. Burger:

But the notary must make a judgment as to whether or not the person is acting of his or her own free will?

Mary F. Keller:

That’s absolutely correct.

And once the notary notarizes the document, it is conclusive that it is what it said, what it purports to be, unless there is fraud proven in a court of law.

Sandra Day O’Connor:

Is that aspect of the notary’s duty different, do you suppose, than that of other states, such as Connecticut?

Mary F. Keller:

The ability to hold a person in contempt of court is one that I think is unusual and, looking at some of the publications of the American Association of Notaries, it does not appear to me that that is a standard authority given to notaries.

And in my reading of In re Griffiths, which is the only familiarity I have with the notary in Connecticut, it is not designated as one of the authorities that the notaries there have.

John Paul Stevens:

Do you cite in your brief any cases in Texas in which a notary has held anybody in contempt of court?

Mary F. Keller:

We do not, Your Honor.

The most recent case on this is Harbison versus McMurray, 163 Southwest Second 680.

It was decided in 1942 on a writ of habeas corpus to release somebody from a commitment by a notary.

And the court in that case found that it was a verbal order and therefore was not an effective commitment, but in so doing recognized the notary’s authority to hold somebody in contempt of court.

John Paul Stevens:

And there has been no case in the last 40 years on it?

Mary F. Keller:

There have been no reported cases in the last 40 years that I have been able to find on this issue.

Byron R. White:

What does a notary do when he commits, when he finds somebody in contempt?

Does he call the sheriff to take him to the jail, is that it?

Mary F. Keller:

That’s right.

Byron R. White:

And what is it?

It isn’t criminal contempt, is it?

It’s civil, or what?

Mary F. Keller:

Well, I suppose it depends on… it’s a civil contempt until they’re purged.

It would not be a criminal contempt.

Lewis F. Powell, Jr.:

May I ask, just to refresh my recollection, what are the qualifications to be a notary in Texas, beside being a citizen?

Mary F. Keller:

You must be over the age of 18.

Lewis F. Powell, Jr.:

Yes.

Mary F. Keller:

A resident of the State of Texas.

Lewis F. Powell, Jr.:

Yes.

Mary F. Keller:

The Secretary of State, in making appointments, has to be convinced that there is no good cause… that there is good cause to appoint you.

Lewis F. Powell, Jr.:

What does that consist of?

Mary F. Keller:

Basically, you cannot be appointed if you have committed a crime of moral turpitude?

Lewis F. Powell, Jr.:

Ma’am?

Mary F. Keller:

You cannot be appointed if you have committed a crime of moral turpitude.

Lewis F. Powell, Jr.:

Do you have to present a court record or affidavit?

How do you show you haven’t committed?

Mary F. Keller:

You certify on your application that there is no reason under law that you would be excluded.

Lewis F. Powell, Jr.:

Do you have to have any documentation from other people or is your certification accepted?

Mary F. Keller:

I believe the certification is accepted, Your Honor.

Byron R. White:

Who appoints you?

Mary F. Keller:

You’re appointed by… now, since 1940, you’re appointed by the Secretary of State.

Sandra Day O’Connor:

And the Secretary of State need not be a citizen, as I understand it?

Mary F. Keller:

The Secretary of State need not be a citizen.

But Your Honor, the Secretary–

Sandra Day O’Connor:

And the notary need not know how to read or write.

Sandra Day O’Connor:

[Laughter]

Mary F. Keller:

–The notary… the requirement to be a notary does not include that.

However, Your Honor, it is a bonded position, and by statute the notary is liable for any harm done as a result of a mistake that he or she makes.

So to the extent that there is incentive to be able to read and write and do your job correctly, there certainly is a financial incentive.

Byron R. White:

I don’t see any requirement that somebody be able to read and write in connection with an awful lot of official positions.

Mary F. Keller:

That’s probably… that is certainly true.

All the elected… all the elected positions in Texas, of course, that clearly is not required.

Byron R. White:

Or maybe for the Senators and Congressman of the United States.

[Laughter]

Mary F. Keller:

To the extent the Secretary of State is not required to be a citizen, I’d like to respond briefly to that.

The Secretary of State is appointed by the Governor with the advice and consent of the Senate, the same way the notary was previously appointed, previous to 1940.

To the extent that what the State of Texas is interested in is commitment to the state, accountability, loyalty, availability should a question about a notarial act arise, it is the legislature’s determination that there is sufficient reason to believe that a person of that character will be appointed by the Governor with the advice and consent of the Senate.

It’s a substitute mechanism for guaranteeing the qualities that Texas wants in its notaries or in its Secretary of State.

Lewis F. Powell, Jr.:

And the only evidence of character is the filling out of a form by the applicant himself or herself?

Mary F. Keller:

That is correct, Your Honor.

Lewis F. Powell, Jr.:

How much is the bond?

Mary F. Keller:

$2,500.

Lewis F. Powell, Jr.:

Does an insurance company put that up?

Mary F. Keller:

I believe they’re… it’s a bonding company.

Lewis F. Powell, Jr.:

And what is the premium?

Mary F. Keller:

I don’t know that, Your Honor.

Lewis F. Powell, Jr.:

And what is the term of a notary?

Mary F. Keller:

Four years.

Lewis F. Powell, Jr.:

Four years.

And most of them have other jobs, I assume?

Mary F. Keller:

Oh, yes.

This is very much analogous to being a juror.

It is a periodic honor at the behest of the state to do a governmental function.

Lewis F. Powell, Jr.:

Is it a political plum in Texas?

Mary F. Keller:

Pardon me, Your Honor?

Lewis F. Powell, Jr.:

Is it a political plum in Texas?

Mary F. Keller:

Yes, Your Honor, it is.

[Laughter]

To the extent… but Your Honor, to the extent that it is part of the state’s political community… and it clearly is, there is no question about that… this case involves political rights, not economic rights.

It is not an attempt to deprive somebody of their basic existence in the community.

And when the state confers political rights, the level of scrutiny is whether it is rational or not.

Perhaps Texas has given notaries more authority than they should have, given the level of scrutiny of application and the level of qualifications.

But that decision is not before this Court, whether the legislature has wisely allowed 300,000 notaries to find somebody in contempt of court.

The point is, Texas has given a great deal of authority to its notaries traditionally.

John Paul Stevens:

Let me ask one other question about that contempt power.

Is that by statute?

Mary F. Keller:

That is by statute, Your Honor.

John Paul Stevens:

And you cite that statute in your brief?

Mary F. Keller:

It is not specifically.

It’s part of the–

John Paul Stevens:

I didn’t see it in your brief.

Mary F. Keller:

–The statutory authority is 6618.

The notary also has the authority to hold someone in contempt in relationship to a deposition, and that is–

John Paul Stevens:

Is this a statute you did not cite in your brief?

Mary F. Keller:

–Not specifically cited.

It’s part of the whole scheme for what the notary does, but that specific statute is not cited.

John Paul Stevens:

I see.

But there is a statute that says notaries can hold people in contempt?

Mary F. Keller:

Yes.

John Paul Stevens:

And it was executed, exercised some 40 years ago?

Or was that before the statute was passed?

Mary F. Keller:

It’s not before the statute was passed.

It was challenged some 40 years ago, the last challenge to it.

John Paul Stevens:

In the notary law?

Mary F. Keller:

Presumably it’s exercised on a daily basis.

Mary F. Keller:

I do not know that, Your Honor.

Byron R. White:

When was the provision about contempt in connection with a deposition put into the statute?

That must have been an amendment.

Mary F. Keller:

It’s an old statute, Your Honor.

It is–

Thurgood Marshall:

Is that true, the only contempt case you can give us is one that was lost?

Mary F. Keller:

–That’s the only challenge to it by habeas corpus, Your Honor, that I have been able to find.

Thurgood Marshall:

Is that the only contempt case that you can give us–

Mary F. Keller:

It’s the only reported case involving the contempt power that I have been able to find, yes, Your Honor.

Byron R. White:

–It’s so well established it’s never been challenged.

Mary F. Keller:

That’s right.

Thank you.

Cornish F. Hitchcock:

Mr. Chief Justice:

I just want to make one response to a factual question from Justice Powell.

The bonding requirement in Texas is $25 in order to become bonded as a notary public.

If the Court has no further questions, we respectfully request that the judgment of the Fifth Circuit be reversed and the case be remanded with instructions to reinstate the judgment of the district court.

Thank you very much.

Warren E. Burger:

Thank you, counsel.

The case is submitted.