Request By:
Honorable Frank F. Chuppe
Wyatt, Tarrant and Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General, you state that you represent a court reporter who practices in Kentucky and is a Kentucky notary public. He would like to reside in Indiana and continue to practice in Kentucky. You ask whether residence in Indiana would disqualify him pursuant to KRS 423.010. You suggest that if our opinion would be that he would be disqualified pursuant to the statute that such interpretation would violate the Privileges and Immunities Clause of the U.S. Constitution.
KRS 423.010 states in part:
A notary public must be eighteen (18) years of age, a resident of the county from which he makes his application, of good moral character and capable of discharging the duties imposed upon him by this chapter, and the endorsement of the officer approving the application shall so state.
In OAG 85-36 we considered KRS 423.110(6) as it allowed non-residents to perform notary acts by obtaining a special commission as a notary. We opined that a notary was an officer of the State. Section 234 of the Kentucky Constitution requires all civil officers for the state at large to reside within the State. Furthermore, KRS 423.010 requires that a notary take an oath before he may act. The oath required of a notary is the one set out in Section 228 of the Kentucky constitution. See OAG 85-36. That oath contains a provision that the one taking it must swear to be a citizen of the State. Consequently in OAG 85-36, we concluded that KRS 423.110(6) was unconstitutional insofar as it applied to non-residents.
You cite two cases in support of your proposition.
Bernal v. Fainter, 467 U.S. 216 (1984) held that a state could not prohibit a resident alien from becoming a notary, since to do so would violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. We followed this case in OAG 85-37. In
Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), the Court held that a state could not prohibit a non-resident who is otherwise qualified from practicing law in the State, since to do so would violate the Privileges and Immunities Clause of the U.S. Constitution, Article IV, § 2. The Court held that a lawyer was not an officer of the state in any political sense. The Court cited In re Griffiths, 413 U.S. 634 (1973). In that case the Court struck down a Connecticut statute that prohibited non-residents from becoming lawyers. The statute gave lawyers, in addition to their usual powers and privileges, additional authority that include many of those duties performed by notaries. The Court concluded that these additional duties did not involve matters of state policy or such unique responsibility as to allow the application of the political function exception to a citizenship requirement.
Piper held that the Privileges and Immunities Clause was intended to create a national economic union and to prohibit state barriers to the pursuit of a livelihood. The Court stated that the Clause may only be overcome by a showing that there is a substantial reason for the difference in treatment between residents and non-residents.
We can discern no substantial reasons to prohibit non-residents from becoming notaries in Kentucky. The duties of a notary are "essentially clerical and ministerial".
Bernal v. Fainter, 467 U.S. at 225. It appears to us that if barring non-residents from the practice of law is unconstitutional, then barring non-residents from the ability to practice as notaries would likewise be unconstitutional. OAG 85-36 is, therefore, modified to the extent it conflicts with this opinion.
Based on our holding here the question of what oath to take and where to take it arises. Section 228 sets out the oath required of notaries. However, because we have held that residency may no longer be considered a requirement, we believe the provision in § 228 regarding state citizenship should be deleted from the oath given to a notary. Furthermore, we believe that the oath may be administered in any county. Restricting the administration of the oath to a county of residency would, we believe, be unconstitutional.