Request By:
Ms. Ann Z. Stewart
General Counsel
Office of Secretary of State
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Secretary of State you request our opinion on the following question:
"May an alien be a Kentucky notary public? "
Notary publics are officers, since this was in the contemplation of the legislature when they wrote, in KRS 423.010, that notaries "shall hold office" for four years. (Emphasis added). The term "his office" is used in KRS 423.020(1).
All officers are required to take the oath established in § 228 of the Kentucky Constitution. In taking the oath they swear allegiance to and support of the Constitution of the United States and the Constitution of Kentucky. They swear that they will be faithful and true to the Commonwealth of Keutncky so long as they continue a citizen thereof. Elsewhere in the oath the declaration of being a state citizen is made. Thus the oath requires citizenship as a condition to filling an office, including the office of notary public.
We concluded in OAG 77-297 that an alien could not qualify as a notary public, since § 228 of the Kentucky Constitution requires citizenship of the United States and Kentucky.
In
Bernal v. Fainter, 104 S. Ct. 2312 (1984), a resident (lives in the United States) alien (native of Mexico) applied to the Texas Secretary of State to become a notary. The application was denied for the reason that a Texas statute requires a notary to be a resident citizen of the United States and of Texas.
In practical terms, the Texas statutory requirement for a notary is parallel to the constitutional requirement of § 228, mentioned above.
The court, before arriving at its conclusion, reasoned that a notary's duties are essentially clerical and ministerial. Such duties do not involve the exercise of broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population - power of the sort that a self-governing community could properly entrust only to full-fledged members of that community. See
Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d, 677 (1982). The Supreme Court has established the rule that as a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. A narrow exception to strict scrutiny is the "political function" and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The Supreme Court, in Bernal v. Fainter, examined the "political function" exception. In so doing, the court held that the exception did not fit the notary's situation because of the limited and ministerial role of the notary in the context of the actual function of a notary. The court wrote that a notary's duties, important as they are, hardly implicate responsibilities that go to the heart of representative goverment. Rather, these duties are essentially clerical and ministerial. See In Re Griffiths, 413 U.S. 717, 37 L. Ed. 2d 910, 93 S. Ct. 2851 (1973), in which the Supreme Court held that the Connecticut rule barring resident aliens from admission to the state bar violated the Equal Protection Clause of the Fourteenth Amendment.
Thus the Supreme Court, in Bernal v. Fainter, concluded that the Texas statute was subject to strict judicial scrutiny. In so ruling, the court held that the Texas statute violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
CONCLUSION
In the light of Bernal v. Fainter, above, it is our opinion that the citizenship requirement of § 228 of the Kentucky Constitution is not enforcible under the equal protection clause of the Fourteenth Amendment to the United States Constitution. The purpose of the Fourteenth Amendment, as well as §§ 3 and 59 of the Kentucky Constitution, is to place all persons similarly situated upon a plane of equality and to render it impossible for any class to obtain preferred treatment.
Louisville & Nashville Railroad Co. v. Faulkner, Ky., 307 S.W.2d 196 (1957) 198. Thus neither the due process clause nor the equal protection clause (U.S. Const.) is for the benefit of citizens only. Hayes v. Board of Regents of Kentucky State University (U.S.C.A. - 6th Circ. - 1974) 495 - 6th Circ. - 1974) 495 F.2d 1326, 1327.
An alien residing in a particular
An alien residing in a particular county in Kentucky may qualify as a notary public, provided that he satisfies the requirements of KRS 423.010 and takes the oath before the county judge executive of his county that "he will honestly and diligently discharge the duties of his office", as required by KRS 423.010. In addition, he must take the oath of officers prescribed in § 228 of the Kentucky Constitution, before any applicable officer listed in KRS 62.020, even though he is not a citizen of the United States nor Kentucky. In view of the holding in Bernal v. Fainter, the requirement of citizenship, as applies to the oath of § 228, Constitution, would be, as a practical matter and in harmony with the cy-pres doctrine of equity, considered waived. Thus there is nothing to impede the applicant's taking the oath of § The oath in § 228 imposes on each officer taking it the solemn sworn duty to support the Constitution of United States as well as the Constitution of this
Commonwealth. Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918 (1927) 920.
Section 165, Kentucky Constitution, characterizes a notary public as an "office", stating that a "notary public. . . . shall not be ineligible to hold any other office mentioned in this section." (Emphasis added). KRS 423.010 recognizes a notary public as an "office". It provides in part that "Before a notary acts, he must take an oath before the county judge executive of his county that he will honestly and diligently discharge the duties of his office." (Emphasis added). And finally, the courts have recognized that the notary public holds an office as such. In
Harbour-Pitt Shoe Co. v. Dixon, Ky., 60 S.W. 186 (1901) 188, the court observed: "The office of notary public is of legislative creation, and is filled by appointment of the governor." (Emphasis added). See also
Sousley v. Citizens Bank, 168 Ky. 150, 181 S.W. 960 (1916) 961, in which the court refers to the expiration of the "notary's term of office." (Emphasis added).
OAG 77-297 is modified accordingly.