Request By:
Ms. Anita L. Robertson
Hancock County Clerk
P.O. Box 212
County Administration Building
Hawesville, Kentucky 42348
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem and question were stated in your letter as follows:
A question has arisen that I would like to have your opinion. In the past the county clerk has always notarized the forms for all of the county officials in the courthouse, as well as other papers. This week a form which I had notarized for the sheriff was returned by the state informing them to have it signed by a Notary Public as the county clerk was not a notary. I checked with some of the attorneys here, and they were of the opinion that a county clerk could notarize any instrument, and the former clerk, who was county clerk for 36 years was of the same opinion.
Therefore, I would appreciate an opinion from you as to whether or not a county clerk has the authority to notarize documents, and if so, are there exceptions.
KRS 28.040 provided that "any circuit or county clerk may administer oaths, in or out of court, touching any matter in which an oath may be legally administered. " However, KRS 28.040 was repealed by Acts 1976 (Ex. Sess.), Ch. 14, § 491.
KRS 30A.070 provides that "Every clerk may administer oaths, in or out of court, touching any matter in which an oath may be legally administered, and may take any affidavit requested or permitted in the progress of a proceeding in his court." However, that pertains only to circuit court clerks. See Acts 1976 (Ex. Sess.) Ch. 20, Section 1.
KRS 64.012 provides fees for a county clerk for "receiving the acknowledgment or proof of any deed, mortgage or agreement, power of attorney or other written instrument required by law to be done and certifying the same." (Emphasis added). A fee is also provided the county clerk for "receiving the acknowledgment, recording and certifying of each deed of release of a mortgage or lien under KRS 382.360." KRS 64.012 provides a county clerk's fee for "administering an oath and certificate thereof." (Emphasis added).
As for appointment of and functioning of notaries, see KRS 423.010 and 423.020.
Thus under KRS 64.012, any county clerk may administer any oath and certify it. Any county clerk may take any acknowledgment or proof of any written instrument required by law to be done and certify it. This is subject to the proviso that the particular instrument is not one required by statute to be taken only before a notary.
A county clerk, if he or she has a notarial appointment under KRS 423.010, may of course act as notary in proving, acknowledging and certifying an instrument. In so acting, the common expression of "notarizing" comes into play.
However, where the county clerk does not have notarial authority, the clerk still possesses the broad statutory authority outlined in KRS 64.012 to prove, acknowledge and certify various instruments, including those required by law. See Taylor v. Jones, 253 Ky. 285, 69 S.W.2d 372 (1934).
Where a statute provides that the proof or acknowledgment can only be taken by a notary, then that specific statute (if there is one) would govern.