Wisconsin Attorney General Opinions
 

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Opinion # OAG 43-85,

7 November 1985

Notary Public; Public Officials;
Residence, Domicile, And Legal Settlement;

Sections 137.01(1) and (2), Stats., which
requires Wisconsin residency as a condition
of appointment as notary public in Wisconsin,
does not violate the Privileges and
Immunities Clause of the Federal Constitution
and should be complied with unless and until
it is declared invalid by a court of
competent jurisdiction in a proper case.

DOUGLAS LA FOLLETTE, Secretary of State

You request my opinion whether those
provisions of Sections 137.01(1) and (2),
Stats., which require Wisconsin residency as
a condition of being a notary public, violate
article IV, Section 2, clause I of the United
States Constitution, commonly known as the
Privileges and Immunities Clause.

For the reasons hereinafter stated,
it is my opinion that they do not.

Section 137.01 is a duly enacted statute
which is entitled to a strong presumption
of constitutionality.

A heavy burden is placed on a party making a
constitutional challenge and, if any
reasonable doubt exists, it must be
resolved in favor of the constitutionality
of the statute.

In the Matter of Guardianship of Nelson,
98 Wis.2d 261, 296 N.W.2d 736 (1980).

Section 137.01(1) is applicable to notaries
public who are not attorneys and Subsection
137.01(1)(a) provides that

the governor shall appoint notaries
public who shall be Wisconsin residents
and at least 18 years of age.

Subsection 137.01(2) provides that

   any Wisconsin resident who is licensed
   to practice law in this state is
   entitled to a permanent commission
   as a notary public upon application
   to the secretary of state and
   payment of a $15 fee.

The application presently before you is from
an attorney who was admitted to practice law
in Wisconsin on February 22, 1985 but is a
California resident who maintains his
principal office in Santa Monica, California.

He claims that a permanent commission
as notary public

would be an indispensable part of
practicing law in Wisconsin.

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Our supreme court has noted that the contours
of the Privileges and Immunities Clause
are not well developed.

Taylor v. Conta,
106 Wis.2d 321, 330,
316 N.W.2d 814 (1982).

In Taylor, our court used a three-step
inquiry to determine whether the challenged
statute was constitutional under the clause.

The court must find that a fundamental
right or privilege is involved.

To justify different treatment with respect
to a privilege, the state must prove there is
a substantial reason for discrimination and
the means employed must bear a substantial
relationship to legitimate state objectives.

The court held that in matters of taxation,
because nonresidents may present special
problems for administration of state laws,
the state need not grant nonresidents
precisely the same rights it grants
to residents.

The court held that Wisconsin need not grant
a nonresident deduction with respect to
moving expenses incurred in connection with
production of income outside Wisconsin and
may tax the gain on the sale of a principal
Wisconsin residence if the new residence is
purchased outside the state even though tax
on the gain would be deferred if the new
principal residence were located in
Wisconsin.

In Supreme Court of N.H. v. Piper, 105 S.Ct.
1272 (1985), the United States Supreme Court
applied a similar three-step analysis in
determining that New Hampshire's exclusion of
nonresidents from the bar violated the
Privileges and Immunities Clause.

The Court first found that the practice of
law was a protected "privilege" under article
IV, Section 2 of the United States
Constitution, and then concluded that there
was no substantial reason for the difference
in treatment between residents and
nonresidents and that the discrimination
practiced against the nonresidents did not
bear a substantial relationship to any
legitimate state objective.

Piper lived in Vermont, just across the
Connecticut River, which divides her
state from New Hampshire.

The Court ruled 8-1 in favor of Piper.

Justice Byron White wrote a separate
concurring opinion saying that the residency
requirement was invalid only as it applied to
Piper because she lives so close to the state
line.

In Piper, the state argued that the
Privileges and Immunities Clause should not
be applicable to the practice of law because
attorneys' activities are crucial to the
administration of justice and inextricably
bound up with the exercise of judicial power.

Relying on In Re Griffiths, 413 U.S. 717
(1973), the Court held that attorneys do not
really exercise actual governmental power.

In Griffiths, the Court specifically said
that although it did not wish to denigrate
in any way the great responsibility that the
power to administer oaths entails, it hardly
involved matters of state policy or

acts of such unique responsibility as to
entrust them only to citizens.

Griffiths, 413 U.S. at 724.

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One of the privileges guaranteed nonresidents
by the Privileges and Immunities Clause is
the privilege of engaging in certain
businesses in a state on terms of substantial
equality with the residents of that state.

Toomer v. Witsell, 334 U.S. 385, 396 (1948).

It can be argued that being a notary public
is advantageous to the practice of law, and
that a member of the Wisconsin Bar, who is a
resident of Minnesota but practices in
Wisconsin, might be at a disadvantage if he
or she is not allowed to be a notary public.

Any such disadvantage would be de minimis as
there are thousands of notaries public and
other officials in Wisconsin who are
empowered to take oaths, attestations
and certify depositions who would be
available to any non-resident attorney
on a statutory fee basis.

The facts here are
distinguishable from Piper.

There the Court found that the practice of
law should be considered a "fundamental
right" and that

out-of-state lawyers may Ä and often
do Ä represent persons who raise
unpopular federal claims.

In some cases, representation by
nonresident counsel may be the only
means available for the vindication
of federal rights.

Piper, 105 S.Ct. at 1277.

We do not believe the same importance can be
attached to any need to import a non-resident
notary public into Wisconsin.

Piper is also distinguishable because
no public office was involved.

An attorney is an officer of the court for
some purposes, but is not a public officer.

It is my opinion that the acts which
a notary can perform do not
constitute the practice of law.

One doesn't have to be a notary public to be
an attorney or to engage in the law business
and one doesn't have to be in the practice of
law or be an attorney to be a notary public.

Further, being a notary public is not
usually considered a business or
occupation in and of itself.

In my opinion, a nonresident does not have a
fundamental right to engage in the activities
delegated by the Legislature to notaries
public.

Sections 137.01(5), (6), (6m) and, 7)
provides:

137.01(5) Powers.

   Notaries public have power to act
   throughout the state.

   Notaries public have power to demand
   acceptance of foreign and inland bills
   of exchange and payment thereof, and
   payment of promissory notes, and may
   protest the same for nonacceptance or
   nonpayment may administer oaths, take
   depositions and acknowledgments of
   deeds, and perform such other duties as
   by the law of nations, or according to
   commercial usage, may be exercised and
   performed by notaries public.

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137.01(6) Authentication.

137.01(6)(a)

   The secretary of state may certify to
   the official qualifications of any
   notary public and to the genuineness of
   his signature and seal or rubber stamp.

137.01(6)(b)

   Whenever any notary public has filed in
   the office of the clerk of circuit court
   of his county of residence his
   signature, an impression of his official
   seal or imprint of his official rubber
   stamp and a certificate of the secretary
   of state, such clerk may certify to the
   official qualifications of such notary
   public and the genuineness of his
   signature and seal or rubber stamp.

137.01(6)(c)

   Any certificate specified under this
   Subsection shall be presumptive evidence
   of the facts therein stated.

137.01(6m)

   Change of Residence.

   A notary public shall not vacate his
   office by reason of his change of
   residence within the state.

  Written notice of any change of address
  shall be given to the secretary of state
  within 5 days of such change.

137.01(7)

   Official Records To Be Filed.

   When any notary public ceases to hold
   office he, or in case of his death his
   executor or administrator, shall deposit
   his official records and papers in the
   office of the clerk of the circuit court
   of the county of his residence.

   If any such notary or any executor or
   administrator, after such records and
   papers come to his hands, neglects
   for 3 months to deposit them he
   shall forfeit not less than $50
   nor more than $500.

   If any person knowingly destroys,
   defaces or conceals any records or
   papers of any notary public he shall
   forfeit not less than $50 nor more than
   $500, and shall be liable to the party
   injured for all damages thereby
   sustained.

   The clerks of the circuit courts shall
   receive and safely keep all such papers
   and records in their office.

Section 17.03 provides:

   Any public office is deemed vacant upon
   the happening of any of the following
   events, except as otherwise provided:
   . . . .

17.03(4)

   His or her ceasing to be an
   inhabitant of this state . . .

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Even if we assume that the activities which a
notary public engages in do constitute a
privilege within the Privileges and
Immunities Clause, Wisconsin can limit
appointments to persons who have bona fide
residence within the state, because there is
substantial reason for the difference in
treatment between residents and nonresidents
and any discrimination bears a substantial
relationship to a legitimate state objective.

Wisconsin places great importance upon the
right of any member of the public to inspect
and copy public records.

Secs. 19.31-19.37, Stats.

A notary public, as a public officer,
is the legal custodian of the
records in his or her office.

Although notaries public do not necessarily
have a large number of retained records which
would be subject to inspection and copying,
there would be some.

Section 137.01(7) requires that when a notary
public ceases to hold office, he shall
deposit his official records and papers
in the office of the clerk of the
circuit court of the county of
his residence.

In order for a member of the public to have a
meaningful right to inspect and copy public
records in the hands of a notary public,
such offices must have some place within the
state where such records are maintained.

Section 19.34, Stats.

There is no indication that the applicant who
has a California residence would maintain
an office in Wisconsin.

His office in California is not just across
the river in an adjacent state as in Piper,
but across many rivers and five states.

As early as 1881, our supreme court held that
a notary public was an officer of the state
and, under the then laws,

it was necessary for him to reside in
some county in the state in order to
qualify him to hold the office.

Having such residence, and thus being
qualified, he had power to act in any
county in the state."

Maxwell v. Hartman and another, imp.,
50 Wis. 660, 665,
8 N.W. 103 (1881).

A notary public is a statutory state officer
appointed pursuant to statute as the
Legislature may prescribe rather than an
officer of the court such as an attorney.

Wis. Const. art. XIII, Section 9.

In 63 Op. Att'y Gen. 74 (1974), it was stated
that the position of notary public is an
office of trust, profit or honor in this
state subject to article XIII, Section 3
of the Wisconsin Constitution.

In State ex rel. Wisconsin Dev. Authority v.
Damman, 228 Wis. 147, 163, 277 N.W. 278
(1938), it was held that a person not an
elector of this state is ineligible to hold
public office therein, although the
constitution and statutes do not
expressly so ordain.

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In
Martin v. Smith,
239 Wis. 314, 332, 333,
1 N.W.2d 163 (1941),
the court was concerned with eligibility
of a federal officer to hold a state office
under article XIII, Section 3 of the
Wisconsin Constitution.

The court held that the president of the
university was not a public officer and
noted, 239 Wis. at 333:

It may seem anomalous to some that the
president of a great university should
not be a public officer while a justice
of the peace or a notary public is a
public officer.

The court stated, 239 Wis. at 332:

   It is certain that a person employed
   cannot be a public officer, however
   chosen, unless there is devolved upon
   him by law the exercise of some portion
   of the sovereign power of the state.

The court included notaries public within
those public officers who do exercise some
part of the sovereign power of the state.

Section 137.01(5) specifically restricts
a Wisconsin notary public to notarial
acts within the state.

I am aware that in Bernal v. Fainter,
104 S.Ct. 2312 (1984), the Court held
that a statutory requirement in Texas,
that a notary public be a citizen of the
United States, was unconstitutional.

Under Texas law, notaries authenticate
written instruments, administer oaths
and take out-of-court depositions.

The court stated:

   It has never deemed the source of a
   position whether it derives from a
   State's statute or its Constitution
   as the dispositive factor in determining
   whether a State may entrust the position
   only to citizens.

   Rather, this Court has always looked
   to the actual function of the
   position as the dispositive factor.

   The focus of our inquiry has been
   whether a position was such that the
   officeholder would necessarily exercise
   broad discretionary power over the
   formulation or execution of public
   policies importantly affecting the
   citizen population Ä power of the sort
   that a self-governing community could
   properly entrust only to full-fledged
   members of that community.

Bernal, 104 S.Ct. at 2318.

The Court held that a notary's duties,
important as they are, hardly implicate
responsibilities that go to the heart
of representative government.

Rather, these duties are essentially
clerical and ministerial.

Bernal, 104 S.Ct. at 2319.

The Court referred to In re Griffiths
and noted that

   if it is improper to apply the political
   function exception to a citizenship
   requirement governing eligibility for
   membership in a State bar, it would be
   anomalous to apply the exception to the
   citizenship requirement that governs
   eligibility to become a Texas notary.

Bernal, 104 S. Ct. at 2320.

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Bernal is distinguishable on
a number of grounds.

The Court was not concerned with the
Privileges and Immunities Clause, but with
the Equal Protection Clause contained in
the fourteenth amendment to the
United States Constitution.

The case was concerned with citizenship
and not residency.

The applicant, a native of Mexico,
was a resident of Texas and proposed
to utilize authority to act as a notary
in his work in Texas.

The Texas statute provided that a
notary public must be a citizen
of the United States.

Bernal, 104 S.Ct. at 2316, cites In re
Griffiths, but that case involved the right
of a resident alien to become licensed to
practice law, not to hold public office.

Even in Griffiths, there was residency in the
state in which the person intended to become
licensed and pursue her profession.

Performance of the acts a notary public is
authorized to engage in do not constitute a
"fundamental right" to which the Privileges
and Immunities Clause extends.

Wisconsin has a long history of treating
a notary public as holding an important
public office.

Such officer exercises a portion of
the sovereign power of the state.

Notaries public have, in some cases,
been viewed as political officers.

Such officers are required to preserve their
records and make such records available for
inspection and copying during office hours
and to have their records filed with the
clerk of court of their county of residence
in case of resignation or death.

In my opinion, the provisions of Sections
137.01(1) and (2), which require Wisconsin
residency as a condition of being appointed
a notary public, do not violate the
Privileges and Immunities Clause.

The statutory provisions are presumed valid
and you should require compliance with their
terms unless and until they are held invalid
by a court of competent jurisdiction in a
proper case.

BCL:RJV

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