The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5351

August 10, 1978

CONSTITUTIONAL LAW:

Equal Protection

NOTARIES PUBLIC:

Citizenship Requirement

The statute providing that a notary public must be a United States citizen is unconstitutional as a denial of equal protection on the basis of alienage.

The Honorable Richard H. Austin

Secretary of State

Lansing, Michigan 48918

You have requested my opinion on the constitutionality of the state citizenship requirement for notaries public found in 1846 RS, Ch 14, Sec. 107, as amended by 1971 PA 209; MCLA 55.107; MSA 5.1041, which provides in pertinent part:

'. . . No person shall be eligible to receive such an appointment unless he or she shall be . . . a resident of the county of which he or she desires to be appointed notary public, and a citizen of this state. . . .' [Emphasis added]

Earlier opinions of the Attorney General have held that a person must be a United States citizen to be eligible as a notary public. See OAG, 1928-1930, p 55 (August 10, 1928); OAG, 1945-1946, No 2446, p 6 (July 12, 1944). However, these opinions predated the constitutional developments, discussed below, under which classifications based on alienage are viewed by the courts as inherently suspect. Therefore, these opinions must be reconsidered in light of this development.

As mentioned above, classifications based upon alienage have been held to be inherently suspect. Graham v Richardson, 403 US 365; 91 S Ct 1848; 29 L Ed 2d 534 (1971). In the case of In re Griffiths, 413 US 717, 93 S Ct 2855; 37 L Ed 2d 910 (1973), the United States Supreme Court held that the State of Connecticut had failed to meet the heavy burden of justification required in order to sustain a statutory provision which conditioned admission to the practice of law upon United States citizenship. Since the state had failed to do so, the citizenship requirement was held to violate the Equal Protection Clause of the 14th Amendment to the United States Constitution. In reaching this conclusion, the Supreme Court stated:

'The Court has consistently emphasized that a State which adopts a suspect classification 'bears a heavy burden of justification,' McLaughlin v Florida, 379 US 184, 196 (1964), a burden which, although variously formulated, requires the State to meet certain standards of proof. In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest.

'Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities.' [In re Griffiths, supra, at p 2855]

See also Nyquist v Mauclet, ---- US ----; 97 S Ct 2120; 53 L Ed 2d 63 (1977).

In Sugarman v Dougall, 413 US 634; 93 S Ct 2842, 37 L Ed 2d 853 (1973), the United States Supreme Court held that a provision of the State of New York's civil service law making United States citizenship a prerequisite for eligibility for permanent status as a classified state employee was violative of the Equal Protection Clause. Although the court applied the strict scrutiny standard in striking the statute, it recognized that under certain circumstances a state can exclude aliens from certain positions for reasons which would satisfy the strict scrutiny test:

". . . [E]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.' . . . Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.' . . . And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. . . ." 413 US at 648

'. . . But our scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives. . . . This is no more than a recognition of a State's historical power to exclude aliens from participation in its democratic political institutions, . . . and a recognition of a State's constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. ...' [Sugarman v Dougall, supra, at 635] (Emphasis added) 413 US at 648

Thus, although classifications based on alienage are inherently suspect, the Supreme Court has recognized that the state may constitutionally require United States citizenship as prerequisite for eligibility to hold vital and essential positions in state government. In Foley v Connelie, 419 F Supp 889 (SD NY 1976), affirmed ---- US ----; 98 S Ct 1067; ---- L Ed 2d ---- (U.S. S Ct March 22, 1978), it was held that the exclusion of aliens from positions as state troopers did not violate the Equal Protection clause. In so ruling the court relied on the nature of the positions involved:

'Positions such as these are designed specifically for the direct preservation and protection of the constitutional rights of all persons within New York State. These are delicate nonelective executive positions made more so by the fact that the performance of the members is largely unsupervised. It is our conclusion that this is an 'important nonelective executive . . . position' and these 'officers who participate directly in the . . . execution . . . of broad public policy perform functions that go to the heart of representative government.' Sugarman v Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L. Ed. 2d 853. This is a situation where citizenship bears a vital and essential relationship to the proper performance of the duties of a state trooper.' [Foley v Connelie, supra, at p 895]

The position of notary public is a governmental position. As a result it must be determined whether it falls into the category of governmental positions which are so sensitive and crucial that access to these positions may be denied to aliens. This very question was considered by a three judge district court in Taggart v Mandel, 391 F Supp 733 (DC Md 1975). The state defended the United States citizenship requirement by relying upon the language of the Supreme Court in Sugarman v Dougall, supra, discussed above. The court rejected this argument and declared the United States citizenship requirement for notaries public to be unconstitutional. In reaching this conclusion, the court first determined that the provision was susceptible to constitutional analysis under the Equal Protection Clause.

'In the instant case it would appear that the Maryland constitutional office of notary public is a public office, see Moser v Howard County Board, 235 Md. 279, 201 A.2d 365 (1964), and that a notary public in Maryland is an 'office holder' in the traditional sense. However, this Court is not persuaded that that fact, either alone or when considered in conjunction with the specific responsibilities of the office and the lengthy history of the challenged limitation, is sufficient to exempt State qualifications with respect thereto from the purview of the equal protection clause--although it might provide a basis in an appropriate case for applying a less exacting standard of judicial scrutiny.' [Taggart v Mandel, supra, at p 738]

The court then determined that the United States citizenship requirement was unconstitutional even under the more lenient rational basis standard.

'While this Court is aware that '[t]he presumption of reasonableness is with the State,' Salsburg v Maryland, 346 U.S. 545, 553 & N. 9, 74 S.Ct. 280, 284 & n. 9, 98 L.Ed. 281, 289 (1954); Wilson v Moore, 346 F. Supp, 635, 640 (N.D. W. Va. 1972); Thompson v Whitley, 344 F. Supp, 480, 483-84 (E.D.N.C. 1972), it is not persuaded that the position of notary public is one 'where citizenship bears some rational relationship to the special demands of the particular position.' See Dougall v Sugarman, 339 F. Supp. 906, 911 (S.D.N.Y. 1971) (Lumbard, J., concurring), aff'd, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). Thus, this Court notes that the various functions of a notary public are largely ministerial in nature, and it feels that they are qualitatively indistinguishable from those functions of an attorney to which the Supreme Court accorded such short shrift in In re Griffiths, supra, 413 U.S. at 724, 93 S.Ct. at 2856, 37 L.Ed.2d at 916:

It in no way denigrates a lawyer's high responsibilities to observe that the powers 'to sign writs and subpoenas, take recognizances, [and] administer oaths' hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.'

[Taggart v Mandel, supra, at pp 739, 740]

The constitutionality of classifications based on alienage has been examined by the Michigan Supreme Court. The court followed In re Griffiths, supra, in its decision in In re Houlahan, 389 Mich 665; 209 NW2d 250 (1973), in which the statutory requirement of citizenship for licensure as an attorney was declared unconstitutional. Furthermore, attorney general opinions have declared the citizenship requirements for licensure as a psychologist, OAG, 1973-1974, No 4775, p 74 (August 24, 1973); for licensure as a dentist, OAG, 1973-1974, No 4785, p 83 (September 14, 1973); for licensure as a veterinarian, OAG, 1973-1974, No 4776, p 81 (September 14, 1973); for licensure as accountant, OAG, 1973-1974, No 4765, p 40 (May 18, 1973); and for licensure as a podiatrist, OAG, 1973-1974, No 4767, p 43 (May 18, 1973), unconstitutional as a denial of equal protection of the laws.

It is therefore my opinion that the citizenship requirement for notaries public in 1846 RS, ch 14, Sec. 107, supra, is unconstitutional as a denial of equal protection on the basis of alienage; prior contrary attorney general opinions are therefore overruled.

Frank J. Kelley

Attorney General