Petitioners Brief — Bernal v. Fainter

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IN THE om CLERK

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JAN 19 to94

No. 83-630 |

= STEVAS.

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1983

EFREM BERNAL,

Petitioner,

Wa

JOHN W. FAINTER, JR., Secretary of State of the State of

Texas, JOE RIVERA, County Clerk for Cameron County,

Texas, and, SANTOS SALDANA, County Clerk for

Hidalgo County, Texas,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

THOMAS SULLIVAN CORNISH F. HITCHCOCK

DENIS A. DOWNEY (Counsel of Record)

ALAN B. MORRISON

Downey & Sullivan JOHN CARY SIMS

1185 F.M. 802, Suite 3

Brownsville, Texas 78520 Public Citizen Litigation Group

(512) 544-0561 Suite 700

2000 P Street, NW

Washington, D.C. 20036

(202) 785-3704

January 1984 Attorneys for Petitioner

eS SS LS SETS

THE CASILLAS PRESS. INC. -1717 K Street N W —Wastungtion. O. C.-273-1220

(i)

QUESTION PRESENTED*

May a State constitutionally deny all resident aliens the op-

portunity to become notaries public, while under /n re Grif-

fiths, 413 U.S. 717 (1973), qualified resident aliens cannot be

denied admission to the bar or be denied the right to ad-

minister oaths and perform other functions similar to those

carried out by notaries public?

* In addition to the parties identified in the caption, Margarita M. Vargas was a

plaintiff-appellee below. Pursuant to Rule 40.3 of the Rules of this Court, respon-

dent John W. Fainter, Jr., Secretary of State of the State of Texas, is automatically

substituted for his predecessor in office George W. Strake, Jr.

(iii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED.................. 00.0000.

TABLE OF CONTENTS.............0...00ceceeeues ii

TABLE OF AUTHORITIES................ 000000000: v

REFERENCE TO OPINIONS.............000. 000000:

EE 2

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED...............0. 0000. 2

STATEMENT OF THECASE...............0..00000- 2

SUMMARY OF ARGUMENT....................05. 5

ccs cece cc eesssesee. 7

THE REQUIREMENT THAT NOTARIES

PUBLIC BE UNITED STATES CITIZENS IS

UNCONSTITUTIONAL AS A DENIAL OF THE

EQUAL PROTECTION OF THE LAWS........... 7

A. The Applicable Legal Standard................. 7

B. The Texas Statute Cannot Withstand

Strict Scrutiny under /n re Griffiths............. 10

(iv)

Page

C. The Court of Appeals Misapplied Cabell

in Concluding that the Functions of Notaries

Public Are “Political” and Thus Subject to a

Less Demanding Standard of Review ......... 15

D. There Is No Rational Relationship

Between the Ban on Aliens Setving as

Notaries Public and the Achievement

of a Legitimate State Interest ................ 21

CONG MEEE ro babdectuuscencevenscerenteanes 23

(v)

TABLE OF AUTHORITIES

Cases: Page

Ambach v. Norwick,

ee Ra POOR ous é wh cccecees 9, 10, 16, 18-19, 21

Cabell v. Chavez-Salido,

en es a ecieeeeedepoeks passim

Cammer vy. United States,

ee ie eaumaw nee 12

Cheng v. Illinois,

430) F. Sapp. 917 CN.D. TL 1977)... cc ccccccene 13,14

Cohen v. Hurley,

ES oe ok Levis wage opbreted bbe 11

Examining Board of Engineers, Architects and

Surveyors v. Flores de Otero,

I ano ya's o's w's 6 8 a'awiee ee es 9, 10, 16

Foley v. Connelie,

ee WP PO TOs obs ceca dacwec’s 9, 10, 16, 18-19, 21

Goldfarb v. Virginia State Bar,

oss a ud bey dred wind oc Sore aah 11

Graham v. Ramani,

Fe Ie MD os oc vn vn cecccncceerussens 13

Graham v. Richardson,

NINE, 5 55 0 aud 606-5 seks ksh ce abakee> 7-8

In re Griffiths,

NS ons Candace duly hh evap Vee passim

Heim v. McCall,

es ii sa ea as lala arurclalbal wg 8

Lawyers Surety Corp. v. Gulf Coast Investment Corp.,

410 S.W.2d 654 (Tex. Civ. App.), writ of error refused,

vs te ee DL: EPR ee 14

Nyquist v. Mauclet,

Ne es ews 9,20

Patsone v. Pennsylvania,

ee ee I o's v's oo heidas hanevaaks awaieie 8

(vi)

Perkins v. Smith,

426 U.S. 913 (1976), aff'g mem.,

370 F. Supp. 134 (D. Md. 1974)(three-judge court)..... 9

Plyler v. Doe,

er Se CTOs ood 2cscinvbccttcesuenswuceeee 8

In re Primus,

ee ee Oe CEUs kos evah es cusccateveeeeentn 11

San Antonio Independent School District v. Rodriguez,

ee Gls CRIES 0 a os dhe catvkce pe eel a keeen 8

Skafte v. Rorex,

430 U.S. 961 (1977), dismissing appeal from

191 Colo. 399, 553 P. 2d 830 (1976). ............... 9

Sugarman v. Dougall,

ge EO rr. 9, 10, 15, 18, 20

Taggart v. Mandel,

391 F. Supp. 732 (D. Md. 1975)

SURG bc i.ccchcnevee vase \eunmaeees 13,14

Takahaski v. Fish & Game Commission,

OMEN cs icdccdcuecevnheeeecuseemauee 8

Terrace v. Thompson,

PP RE GUEOD, o.oo s vninccdesecccnedeneeeeueee 8

Truax v. Raich,

PP REEDS 6.6 ccc bicedcekseeeen¥ene aa cneue 8

Vargas v. Strake,

710 F.2d 190 (Sth Cir. 1983), cert. granted,

No. 83-630 (S December 1983)...... cc ccncccccscess 2

Yick Wo v. Hopkins,

PO EPE AEDS cin e's bonavechtatasauawaneeuan 8

United States Constitution:

PEE IE aS Bic ce dcnyccciselaniabene hare passim

(vii)

Federal Statutes:

ie Gola Ks as bat Behe ween Ss

oy orld eu daeeeeaernekane.s

as ss wah badness beakers

ae a's wm bluone.e-b ashen’

State Constitution:

Texas Constitution, Article IV, §21...............05. 17

State Statutes:

Burns’ Indiana Statutes Annotated

EE BR on) a ee ee

Connecticut General Statutes Revised

ie Ge ge asd vad db Wee eee 11

Texas Revised Civil Statutes Annotated

Article 2321 ........ ete ee ek hea wo nleeen 17

oc cae Ah seen teens eed ne bane 17

ee ee TS 17

Los au a wah we Cabs 44 seas bas 17

iss Tabb n eens ee kee ee passim

SS a. canon edn bae ewe we wae 14,17

ee cee kieebeue vas eaeneves 14

ha ce ene ee hcn es seeed swan 14

EE Pe ee ey 14

es ce acie'g bans Cae 6uneen ted suaeee 11

le ole SP ceaeeeewe:ed iene 14

eC ee eee ee ees ea be kee abe eRKe 15

1979 Texas General and Special Acts, 66th

Legislature, p. 2213, ch. 840, § 1, codified at

Tex. Rev."Civ. Stat. Ann. art. 5949(3)

(effective 1 January 1980)............ ccc cece eeeeee

(viii)

Page

Other Authorities:

Mexico Notarial Law of 9 January 1932; Law of 30

December 1947, as amended by Decrees of 21

December 1950; 21 December 1965 and 26

December 1966, summarized in Mexico Law

Digest, 7 Martindale-Hubbell Law Directory (1983)... .... 14

Note, A Dual Standard for State Discrimination

Against Aliens, 92 Harv. L. Rev. 1516 (1979).......... 8

R. Rothman, Notary Public: Practices and Glossary

OS Ona hd oie sa ea kaake baeew hee Hane ee ee 3,19

J. Vance and H. Claggett, A Guide to the Law and

Legal Literature of Mexico (1945). .........6 066 eas 15

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1983

No. 83-630

EFREM BERNAL,

Petitioner,

v.

JOHN W. FAINTER, JR., Secretary of State of the State of

Texas, JOE RIVERA, County Clerk for Cameron County,

Texas, and, SANTOS SALDANA, County Clerk for

Hidalgo County, Texas,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

REFERENCE TO OPINIONS

The unreported opinion of the United States District Court

for the Southern District of Texas, Brownsville Division, is

reproduced in the Appendix to the Petition for a Writ of

Certiorari (‘‘Pet. App.”) at pages Sa-13a. The judgment is

reproduced at Pet. App. I4a.

2

The opinion of the United States Court of Appeals for the

Fifth Circuit (Pet. App. 15a-27a) is reported at 710 F.2d 190

(1983) under the name Vargas v. Strake.

ne Sia

JURISDICTION

The judgment of the court of appeals was entered on 25

July 1983 (Pet. App. 27a-28a). The petition for certiorari was

timely filed on 14 October 1983 and was granted on 5

December 1983. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

4

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

The Fourteenth Amendment to the United States

Constitution, Section 1, states in pertinent part:

... No State shall make or enforce any law which

shall . . . deny to any person within its

jurisdiction the equal protection of the laws.

Texas Revised Civil Statutes Annotated article 5949(2)

(1982) states in pertinent part:

To be eligible for appointment as a Notary

Public, a person shall be a resident citizen of the

United States and of this state and at least

eighteen(18) years of age .. ..

STATEMENT OF THE CASE

This case was filed as a class action on 5 July 1979 by

Margarita M. Vargas, who was then a citizen of Mexico, to

challenge the constitutionality of Tex. Rev. Civ. Stat. Ann.

art. 5949(2) insofar as it requires a person to be a citizen of

the United States in order to be eligible for appointment as a

notary public in Texas. Jurisdiction was properly based on 28

U.S.C. §§ 1331, 1343(a)(3) and (4).

3

When the complaint was filed, Vargas was a lawful

resident alien who worked as a secretary/receptionist in a real

estate office in Brownsville. She wished to become a notary

public so that she could administer oaths and take sworn

statements from clients of her office. While the case was

pending in district court, she became a United States citizen

and therefore became eligible to become a notary public. This

case is thus moot as to her (Pet. App. 3a).

Petitioner Efrem Bernal, a native of Mexico, was added as

a plaintiff in the district court (Pet. App. 16a). He is a lawful

resident alien who has been living in the United States since

1961. Id.; see also Deposition of Efrem Bernal (“Bernal

Deposition’’), filed in district court, at 8. After his arrival in

this country, he attended public schools in Texas and

graduated from high school there (Pet. App. 2a). From 1974 to

1978 he was employed in a migrant legal services program in

Indiana, and during those four years he held a commission as

a notary public in that state (Pet. App. 2a.)' Since 1978 he has

been employed as a paralegal by Texas Rural Legal Aid, Inc.

in Edinburg (Pet. App. 2a; Bernal Deposition at 19), where he

works exclusively with migrant farm workers on employment

and civil rights issues (Bernal Deposition at 6). His job

requires that he go into the fields and interview 15 to 50 farm

workers a month (id. at 12-13). On an average of two to four

times each month, he needs to obtain sworn statements from

these workers for use in civil litigation (id. at 13). He wants to

become a notary public because it is “very hard and

inconvenient to get one of the other paralegals to go out with

me to just get an affidavit or statement notarized” (id. at 8; see

also Pet. App. 3a-4a).?

' The Indiana notary statute under which Mr. Bernal was commissioned during

this period embraces all the functions which he would perform as a Texas notary.

See Burn's Ind. Stat. Ann. § 33-16-2-5 (1975).

? Mr. Bernal’s situation recalls one of the historical reasons why the authority of

notaries to serve the public was expanded. “In the 1800's, it was not always possi-

ble to take the testimony of a witness in a courtroom. Transportation was slow and

witnesses were often incapable of making an appearance for reasons of distance or,

in some cases, health. Therefore, Notaries Public were empowered to take deposi-

tions.” R. Rothman, Notary Public: Practices and Glossary 3-4 (1978).

4

Respondent John W. Fainter, Jr. is Secretary of State of the

State of Texas and is automatically substituted for his

predecessor, George W. Strake, Jr., pursuant to Rule 40.3 of

the Rules of this Court. Respondents Joe Rivera and Santos

Saldana are the county clerks for Cameron County (where

Mrs. Vargas resides) and Hildago County (where Mr. Bernal

resides), respectively. The respondents will be referred to col-

lectively in this brief as the “State of Texas’’ or the “State.”

At the time that this suit was filed, the Texas notary public

Statute required applicants to submit a standardized form to

the local county clerk, who then forwarded it to the Secretary

of State for consideration (Pet. App. la). Since then, the

statute has been amended to make the Secretary of State sole-

ly responsible for processing such applications. See 1979 Tex.

Gen. and Special Acts, 66th Legis., p. 2213, ch. 840, § 1,

codified at Tex. Rev. Civ. Stat. Ann. art. 5949(3)(effective |

January !980).

In October 1978, petitioner applied to become a notary

public in Texas, but his application was denied (Pet. App.

2a-3a). He appealed that decision and was given an ad-

ministrative hearing, but the denial was upheld on the sole

ground that he was ineligible for appointment as a notary

public because of the citizenship requirement in Tex. Rev.

Civ. Stat. Ann, art. 5949(2)(Pet. App. 3a).

In district court, the request for class relief was abandoned

(Pet. App. Sa), and the request of Mrs. Vargas and Mr. Bernal

for declaratory and injunctive relief was submitted on the

basis of stipulated facts (Pet. App. la- 4a). On 9 October 1981

the district court declared that the citizenship requirement of

Tex. Rev. Civ. Stat. Ann. art. $949(2) was unconstitutional as

a denial of the equal protection of the laws, and the court en-

joined respondents from refusing to consider the applications

of Mrs. Vargas and Mr. Bernal to become notaries public

(Pet. App. 9a-1 1a).

5

The State appealed, and the court of appeals reversed in an

opinion by Judge Reavley in which Judge Politz joined (Pet.

App. IS5a-24a). The court held that the statute did not violate

equal protection guarantees because, under this Court’s opi-

nion in Cabell v. Chavez-Salido, 454 U.S. 432 (1982), the

citizenship requirement “‘bears a rational relationship to the

state’s interest in the proper and orderly handling of a

countless variety of legal documents of importance to the

state’ (Pet. App. 24a). Judge Ingraham dissented (Pet. App.

24a-27a): In his view, the majority had misread Cabell, and

the case was controlled by /n re Griffiths, 413 U.S. 717 (1973),

which invalidated a ban on the admission of aliens to the

Connecticut bar (Pet. App. 25a). In particular, he noted that

“the authority accorded Congecticut lawyers encompasses

every function performed Texas notaries public” (Pet.

App. 25a), and he would have affirmed on that basis. Mr.

Bernal then sought and obtained review by this Court.

SUMMARY OF ARGUMENT

The judgment of the court of appeals should be reversed

because it conflicts with /n re Griffiths, 413 U.S. 717 (1973),

which employed strict scrutiny analysis in striking down a

court rule requiring United States citizenship as a condition

for being admitted to a state bar. In Griffiths, this Court con-

fronted arguments similar to those advanced by the State

here, i.e., that lawyers play such an important role in the

smooth functioning of state government that the citizenship

requirement should be upheld. In rejecting these arguments

and holding the rule unconstitutional, the Court stated that

“the status of having a license to practice law [does not] place

one so close to the core of the political process as to make him

a formulator of government policy,” id. at 729 (footnote

omitted).

Especially relevant here is the fact that the functions per-

formed by Texas notaries are indistinguishable from certain

notarial functions entrusted to Connecticut lawyers in Grif-

6

fiths. In language which controls the outcome here, Griffiths

stated 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 en-

trust them only to citizens.”” 413 U.S. at 724. In light of the

similarities between Griffiths and the present case, the Texas

statute cannot withstand strict scrutiny.

The court of appeals failed to analyze Griffiths, relying in-

stead on this Court's opinion in Cabell v. Chavez-Salido, 454

U.S. 432 (1982), which stated that strict scrutiny was not to be

utilized in cases where a restriction applies to sensitive posts

in state or local government and thus serves “‘political” in-

terests, rather than “economic” interests, as in Griffiths. The

court of appeals concluded that the Texas statute served

“political” interests and upheld the citizenship requirement

as being rationally related to the State’s interest in assuring

that documents are properly notarized and oaths properly ad-

ministered.

In reaching this conclusion, however, the court of appeals

misapplied Cabell’s two-part test for determining which func-

tions should be deemed “‘political.’’ The court found that the

Texas statute was not “substantially overinclusive or

underinclusive” (454 U.S. at 440) within the meaning of the

first prong of Cabell, because the restriction applied only to

notaries public. However, the statute is overinclusive because,

as in Griffiths, it excludes qualified aliens, such as petitioner,

who was a notary in Indiana for four years. The restriction is

fatally underinclusive as well, since Texas has established no

citizenship requirement for court reporters, even though they

too are licensed by the State and are allowed to administer

oaths. Nor does Texas require citizenship of its Secretary of

State, the highest appointed official in Texas, who performs

many important functions, including licensing notaries.

The court of appeals also found that the statute met the

second prong of Cabell, because it covered persons holding

“important nonelective” positions. /d. This conclusion is in-

correct because notaries perform essentially ministerial func-

tions and do so while engaged in a private occupation. This

case is thus unlike those cases in which restrictions have been

deemed “‘political’’ because they denied aliens the right to ex-

ercise important state functions as employees of a state or

local government.

Finally, even if the Texas statute were to be deemed to in-

volve “political” functions, it is still unconstitutional because

there is no rational relationship between the blanket exclu-

sion of aliens and achieving the State’s goal of having

documents properly notarized and oaths properly ad-

ministered. The restriction is not rational in light of the types

of positions which aliens are allowed to hold in Texas state

government, as discussed supra. In addition, the State has

enacted various regulations which should assure that notaries

perform their functions properly, regardless of citizenship.

ARGUMENT

THE REQUIREMENT THAT NOTARIES PUBLIC BE

UNITED STATES CITIZENS IS UNCONSTITUTIONAL AS

A DENIAL OF THE EQUAL PROTECTION OF THE LAWS.

Aw. The Applicable Legal Standard.

Over the past decade, this Court has considered a number

of equal protection challenges to state restrictions on lawful

resident aliens. In Graham v. Richardson, 403 U.S. 365

(1971), the Court held that a state could not distinguish be-

tween lawful resident aliens and citizens in distributing

welfare benefits without meeting a very heavy burden of

justification:

[C]lassifications based on alienage, like those

based on nationality or race, are inherently

suspect and subject to close judicial scrutiny.

Aliens as a class are a prime example of a

“discrete and insular’’ minority (see United States

v. Carolene Products Co., 304 U.S. 144, 152-153

n.4 (1938)) for whom such heightened judicial

solicitude is appropriate.

403 U.S. at 372 (footnotes omitted).’

This strict scrutiny of classifications involving aliens has

been employed in various contexts because aliens, like certain

other groups in our society, “have historically been ‘relegated

to such a position of political powerlessness as to command

extraordinary protection from the majoritarian political pro-

cess.””’ Plyler v. Doe, 457 U.S. 202, 217 n.14 (1982), quoting

San Antonio Independent School District v. Rodriguez, 411

U.S. 1, 28 (1973). See Note, A Dual Standard for State

Discrimination Against Aliens, 92 Harv. L. Rev. 1516, 1525

(1979).

Following Graham, the Court has applied strict scrutiny to

state laws which disadvantaged aliens economically by

3 In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court first held that resident

aliens may rely upon the equal protection clause of the Fourteenth Amendment. It

concluded that a state could not deny aliens the right to carry on a “harmless and

useful occupation” that may be performed by citizens, id. at 374, in that case the

operation of commercial laundries. Accord, Truax v. Raich, 239 U.S. 33 (1915)in-

validating statute requiring private employers to hire a certain percentage of

“qualified electors or native-born citizens’’).

The early decisions of the Court thus showed a willingness to intervene when

state laws restricted purely private employment opportunities. However, the Court

declined to strike down restrictions denying aliens the right to enjoy public

benefits, reasoning that a state could properly limit to its citizens the enjoyment of

scarce public resources. See, ¢.g., Terrace v. Thompson, 263 U.S. 197 (1923)

(ownership of land); Heim v. McCall, 239 U.S. 175 (1915)(employment on public

works projects); Patsone v. Pennsylvania, 232 U.S. 139 (1914)(taking of wild

game).

The notion that a state has a “special public interest’ in preserving certain

benefits or resources for its citizens was undercut in Takahashi v. Fish & Game

Commission, 334 U.S. 410 (1948), which invalidated a California law denying

commercial fishing licenses to persons “ineligible to citizenship.” The “special

public interest’ doctrine was effectively laid to rest in Graham v. Richardson.

9

depriving them of employment opportunities and of some

state benefits. Thus, the Court has struck down state laws de-

nying aliens adinission to a state bar, /n re Griffiths, 413 U.S.

717 (1973); jobs in a state’s civil service, Sugarman yv.

Dougall, 413 U.S. 634 (1973); a license as a civil engineer,

Examining Board of Engineers, Architects and Surveyors v.

Flores de Otero, 426 U.S. 572 (1976); and eligibility to receive

a state scholarship for higher education, Nyquist v. Mauclet,

432 U.S. 1 (1977).

The Court has, however, carved out an exception to this

general rule of strict scrutiny when state laws prevent aliens

from holding sensitive posts in state or local government.

Thus, even though a wholesale ban on aliens holding civil ser-

vice posts was struck down in Sugarman v. Dougall, supra,

this Court stated that a less demanding standard would be ap-

plied to narrower classifications involving ‘“‘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

functions that go to the heart of representative government.”

413 U.S. at 647. If a classification involves such an important

post, the state needs “to justify its classification only ‘by a

showing of some rational relationship between the interest

sought to be protected and the limiting classification.” Am-

bach v. Norwick, 441 U.S. 68, 74 (1979), quoting Foley v. Con-

nelie, 435 U.S. 291, 296 (1978). The Court has applied this

less rigorous standard to classifications which barred aliens

from serving as police officers, Foley v. Connelie, supra;

public school teachers, Ambach v. Norwick, supra; and peace

officers, Cabell v. Chavez-Salido, supra, and has upheld the

restriction in each case under this “rational relationship”

test.*

* In addition, aliens have been excluded from voting in local elections, Skafte v.

Rorex, 430 U.S. 961 (1977), dismissing appeal from 191 Colo. 399, 553 P.2d 830

(1976), and from serving on grand and petit juries, Perkins v. Smith, 426 U.S. 913

(1976), aff'e mem., 370 F. Supp. 134 (D. Md. 1974)(three-judge court).

10

In Cabell v. Chavez-Salido, supra, the Court summarized

the evolution of the law in this area and articulated a two-step

standard for use in determining whether strict scrutiny should

not be employed because a restriction on aliens falls within

the Sugarman exception and serves what the Court termed

“political” ends, as in Foley and Ambach, rather than

“economic” goals, as in Griffiths, Sugarman and Flores de

Otero. 454 U.S. at 438-39. First, a classification that is

“substantially overinclusive or underinclusive tends to under-

cut the governmental claim that the classification serves

legitimate political ends.” Jd. at 440. Second, even if a

classification is “sufficiently tailored,” it may be applied only

to officials holding “important”’ positions of the sort specified

in the Sugarman exception. /d. Thus, a court must “inquire

whether the ‘position in question . . . involves discretionary

decisionmaking, or execution of policy, which substantially

affects members of the political community.” /d. at 440-41,

quoting Foley v. Connelie, supra, 435 U.S. at 296.

In the balance of this brief, we will first demonstrate why

the restriction in this case is so similar to the restriction in-

validated under strict scrutiny analysis in /n re Griffiths,

supra, that Griffiths is controlling. We will then demonstrate

how this result is consistent with Cabell and how the court of

appeals misapplied Cabell in concluding that this classifica-

tion served “political” ends and was therefore subject to less

searching review than strict scrutiny. Finally, we will

demonstrate why, even if the Texas classification is con-

sidered to be “political,” there is no rational relationship be-

tween the restriction and the state interests sought to be pro-

tected.

B. The Texas Statute Cannot Withstand

Strict Scrutiny Under In re Griffiths.

The judgment of the court of appeals should be reversed

because it squarely conflicts with /n re Griffiths, in which this

11

Court invalidated a Connecticut court rule barring aliens

from admission to the state bar. The Court found that the

citizenship requirement could sot withstand strict scrutiny

because the functions of lawyers “hardly involve matters of

state policy or acts of such major responsibility as to entrust

them only to citizens.” 413 U.S. at 724.

In reaching its decision, the Court recognized that lawyers

“occupy professional positions of responsibility and in-

fluence that impose on them duties correlative with their vital

right of access to the courts.” /d. at 729. Accord, Goldfarb v.

Virginia State Bar, 421 U.S. 773, 792 (1975) (“lawyers are

essential to the primary governmental function of administer-

ing justice, and have historically been ‘officers of the

courts’’’), quoted in In re Primus, 436 U.S. 412, 422 (1978).

See also Cohen v. Hurley, 366 U.S. 117, 123-24 (1961). The

Court nonetheless held that ‘the status of holding a license to

practice law [does nv" place one so close to the core of the

political process as to iiiake him a formulator of government

policy,” Griffiths, supra, 413 U.S. at 729 (footnote omitted).

What is especially significant for the present case is the

fact that the functions performed by Texas notaries are in-

distinguishable from the functions performed by Connecticut

lawyers as Commissioners of the Superior Court, an office to

which they are automatically appointed upon admission to

the bar. In that capacity, they are empowered to “sign writs

and subpoenas, take recognizances, administer oaths and take

depositions and acknowledgements of deeds.’’ Conn. Gen.

Stat. Rev. § 51-85. Similarly, Texas notaries public “have the

same authority to take acknowledgements or proofs of written

instruments, protest instruments permitted by law to be pro-

tested, administer oaths, and take depositions as is now or

may hereafter be conferred by law upon County Clerks.” Tex.

Rev. Civ. Stat. Ann. art. 5954. In light of these similarities

and the fact that Griffiths was recently reaffirmed in Cabell,

supra, 454 U.S. at 439, the State has the burden of showing

how it can be constitutionally improper to require citizenship

12

for lawyers, but proper to require it for notaries. This the

State has failed to do.

In defending its restriction in Griffiths, the State of Con-

necticut advanced an argument about the importance of

lawyers which is similar to that raised by the State of Texas

regarding notaries (see Brief in Opposition at 4-5) — that a

lawyer is a public official “‘who acts by and with the authority

of the State”’ and who is entrusted with “the exercise of actual

government power,” 413 U.S. at 728. In particular, Connec-

ticut argued that its legislature had given concrete meaning to

the claim that lawyers are “officers of the court” by appoint-

ing them as Commissioners of the Superior Court. /d. The

fact that lawyers hold this office was not enough, however, to

sustain the. citizenship requirement in Griffiths. In language

which is pertinent here, this Court stated:

It in no way denigrates a lawyer’s high respon-

sibilities to observe that the powers “‘to sign writs

and subpeonas, take recognizances, [and] ad-

minister oaths’’ hardly involve matters of state

policy or acts of such unique responsibility as to

entrust them only to citizens.

413 U.S. at 724 (emphasis added).

The Court emphasized that ‘ta lawyer is not an officer in

the ordinary sense,” for unlike marshals, bailiffs, court clerks

or judges, who are employed by the government, ‘‘a lawyer is

engaged in a private profession, important though it be to our

system of justice.”’ /d. at 728-29, quoting Cammer v. United

States, 350 U.S. 399, 405 (1956). In addition, people do not

become “officials of government by virtue of being lawyers.”

Id. at 729. This reasoning applies with equal force to notaries,

who, like lawyers, are licensed to perform certain functions,

but who generally do so while privately employed.

13

Nor was the Griffiths Court persuaded that the restriction

was valid because aliens might somehow be disloyal to the

United States. Noting that attorneys must take an oath to sup-

port the United States and state constitutions, id. at 725-26,

and are subject to “continuing scrutiny by the organized bar

and the courts,”’ id. at 727, the Court concluded that “the

practice of law [does not offer] meaningful opportunities

adversely to affect the interest of the United States. Certainly

the Committee has failed to show the relevance of citizenship

to any likelihood that a lawyer will fail to protect faithfully

the interest of his clients."’ /d. at 724 (footnote omitted).

Griffiths controls the outcome here. Certainly, if citizenship

is not required in order to practice law, it should not be re-

quired in order to be a notary. Indeed, accepting the State’s

argument would result in a curious anomaly: an alien admit-

ted to practice law in Texas could draft contracts, wills, deeds

and other important legal documents, but could not notarize

them. Such a result would make no sense, especially since the

lawyer who drafts (or errs in drafting) a will or a deed has a

far more significant impact on the public and the “orderly

processing of a countless variety « legal documents” (Pet.

App. 24a) than the notary who simply attests to the signature.

Curiously, the court of appeals failed to discuss Griffiths

and merely cited the case in a footnote (Pet. App. 20a n.3).

Nor did the court mention three decisions which followed

Griffiths in striking down citizenship requirements for

notaries in Florida, Illinois and Maryland. See Graham v.

Ramani, 383 So. 2d 634 (Fla. 1980); Cheng v. Illinois, 438 F.

Supp. 917 (N.D. Ill. 1977); Taggart v. Mandel, 391 F. Supp.

732 (D. Md. 1975)(three-judge court). As the foregoing

discussion suggests, however, Griffiths cannot be sidestepped

so easily.

Applying the strict scrutiny analysis of Griffiths to the

Texas statute at issue here dictates a finding of unconstitu-

tionality. There is no evidence in the record that lawful resi-

14

dent aliens, as a class, are so untrustworthy, incompetent or

otherwise handicapped by their foreign citizenship that they

must be denied the opportunity to administer oaths, witness

signatures and perform the other functions carried out by

notaries public for those who wish to utilize their services. As

the Court recognized in Griffiths, “the possibility that some

resident aliens are unsuited to the practice of law [cannot] be

a justification for a wholesale ban,” 413 U.S. at 725.°

This is not to say that a state is powerless to regulate the

qualifications and performance of notaries public. Just as was

true of Connecticut lawyers in Griffiths, a state “has wide

freedom to gauge on a case-by-case basis the fitness of an ap-

plicant” for a particular post and to “require appropriate

training and familiarity with state laws.”’ /d. In fact, Texas has

imposed a number of regulations on persons who wish to be

licensed as notaries. Tex. Rev. Civ. Stat. Ann. art. 5949(3).

For example, as a means of assuring loyality to the United

States, as well as faithful performance once in office, Texas

notaries public take an oath of office and execute a bond of

$2500 (art. 5949(7)). So that their activities can be

monitored, they are required to maintain a record book,

which is available for public inspection (art. 5955). In addi-

tion, they are subject to civil liability for damages for any

derelictions of their official duties. See Lawyers Surety Corp. v.

Gulf Coast Investment Corp., 410 S.W.2d 654 (Tex. Civ.

App.), writ of error refused, 416 S.W.2d 779 (Tex. 1967).®

5 Ironically, petitioner was commissioned as a notary public by the State of In-

diana and held that post during the four years he lived there (Pet. App. 2a).

* As another form of consumer protection, Texas notaries who advertise their

services in Spanish cannot describe themselves as “Notario Publico” or represent

that they can give legal advice (art. 5949(5)(c)). The purpose of this law is to pre-

vent people from thinking that a Texas notary is comparable to a Notario Publico

in Mexico, who must be trained in the law and can not only witness legal

documents, but can draft them as well. Violation of this disclosure requirement is

punishable as an unfair trade practice (art. $949(5)(d)). See Mexico Notarial Law

of 9 January 1932; Law of 30 December 1947, as amended by Decrees of 21

December 1950; 21 December 1965 and 26 December 1966, summarized in Mex-

15

Finally, notaries are automatically removed from office if

they are convicted of “any willful neglect of duty or official

misconduct” (art. 5988). See generally Taggart v. Mandel,

supra, 391 F. Supp. at 740; Cheng v. Illinois, supra, 438 F.

Supp. at 918 n.4. These regulations are less onerous than a

total ban and are more than sufficient to assure that only a

qualified person can become and remain a Texas notary

public, regardless of citizenship.

C. The Court of Appeals Misapplied Cadell in

Concluding that the Functions of Notaries

Public Are ‘‘Political’’ and Thus Subject

To a Less Demanding Standard of Review.

The court of appeals relied heavily upon Cabell in con-

cluding that the citizenship requirement for Texas notaries

was “political” rather than “economic” in nature and thus

subject to a less rigorous standard of review. However, Cabell

confirms that strict scrutiny should be applied here. Before

turning to a specific discussion of Cabell and how the court of

appeals misapplied its two-part standard for determining

which state functions are “political,” several preliminary

observations are warranted.

Sugarman stated that a less demanding standard of review

was to be the exception to the general rule of strict scrutiny

for classifications involving aliens and was to be used in those

cases involving “elective or important nonelective executive,

legislative and judicial positions,” for officers ‘“‘who par-

ticipate directly in the formulation, execution, or review of

broad public policy,” 413 U.S. at 647. While Cabell did not

speak in terms of “political” functions being an exception to

the category of “economic” functions, the opinion in no way

expanded the definition of what is “political” and expressly

endorsed the quoted language from Sugarman as the govern-

ing standard. 454 U.S. at 440.

ico Law Digest, p. 16, 7 Martindale-Hubbell Law Directory (1983). See generally J.

Vance and H. Clagett, A Guide to the Law and Legal Literature of Mexico 62-66

(1945).

16

It is particularly important not to give an expansive inter-

pretation to what constitutes a “‘political’’ function of state

government when, as here, the restriction does not apply to

state employees. In cases where this Court has declined to ap-

ply strict scrutiny analysis, the jobs in question all involved

positions on a government payroll: public school teachers,

Ambach v. Norwick, supra, policemen, Foley v. Connelie,

supra, or peace officers, Cabell v. Chavez-Salido, supra.

When restrictions apply to resident aliens as private in-

dividuals, however, strict scrutiny analysis has been utilized,

even when the jobs could affect the public. Thus, in Griffiths,

this Court distinguished between lawyers, who are officers of

the court, though engaged in a private occupation, and other

court officers, such as bailiffs, marshals and judges, who are

full-time government officials. 413 U.S. at 728. This

“distinction between a private occupation and a government

function” was also highlighted in Ambach v. Norwick, supra,

441 U.S. at 76 n.6, which noted that the restriction in Grif-

fiths, like the one at issue here, “‘applied to all attorneys, most

of whom do not work for the government.” /d. By contrast,

the restriction on teachers in Ambach applied “only to

teachers employed by and acting as agents of the State” and

not to private school teachers. Jd. While we do not suggest

that the “economic” versus “political” functions dichotomy

of Cabell should be replaced by a “‘private’’ versus “public”

employment distinction, the latter is useful in determining

which functions are “political” and which are not. Since

notaries, like lawyers, generally perform functions licensed

by the state while privately employed, this distinction helps

place the Texas restriction in the same category as Griffiths,

Sugarman and Flores de Otero.

Turning to Cabell’s two-part standard for determining

which state functions are “political,” the court of appeals

determined that this restriction satisfied the first prong, i.e., it

17

was not “substantially overinclusive or underinclusive,” 454

U.S. at 440, because it applied only to notaries public (Pet. ,

App. 2la-22a). This conclusion is erroneous because the

restriction fails on both counts. It is overinclusive because it

denies a commission to qualified aliens such as petitioner,

who was a notary public in Indiana for four years (Pet. App.

2a). It is also underinclusive since Texas court reporters, like

notaries, are licensed by the State, Tex. Rev. Civ. Stat. Ann.

art. 2324b(1), they are officers of the State (art. 2321), and

they administer oaths and take depositions (art. 2324a(1)),

yet they are not required to be citizens. Nor does Texas re-

quire that its Secretary of State be a United States citizen,

Tex. Const. art. IV, § 21, even though he or she holds the

highest appointive office in the State and performs many im-

portant functions, Tex. Rev. Civ. Stat. Ann. art. 433], in-

cluding supervision of the licensing of all notaries public (art.

5949(3)). Affirming the court of appeals in this case would

produce a striking anomaly, since Mr. Bernal could be ap-

pointed as Secretary of State and thus decide which persons

are qualified to serve as notaries public, even though he could

not hold such a commission himself. Thus, it cannot be said

that the classification involving notaries is “sufficiently

tailored” wihin the meaning of Cabell. If anything, Texas has

“indiscriminately swept in menial occupations, while leaving

out some of the State’s most important political functions,”

Cabell v. Chavez-Salido, supra, 454 U.S. at 440.

The Texas statute also fails to meet the second prong of the

Cabell test, because notaries do not hold such an “important

nonelective” post that they “participate directly in the for-

mulation, execution, or review of broad public policy.” /d.

The court of appeals decided that this standard had been met

largely because of the role played by notaries in acknowledg-

ing signatures and administering oaths on legal papers, as weli

as the deference and presumption of regularity which are

given to notarized documents (Pet. App. 23a).

18

The principal problem with this analysis is that the func-

tions performed by a notary public, which the majority found

to be important in the smooth functioning of government, are

“clerical” and “purely ministerial”’ in nature, as Judge In-

graham pointed out in dissent (Pet. App. 26a). Even the court

of appeals’ majority acknowledged that a notary is called

upon simply to ensure that “those persons executing

documents are accurately identified, to refuse to certify any

identification that is false or uncertain and to insist that oaths

are properly and accurately administered” (Pet. App. 23a). In

carrying out those functions, important though they may be to

the orderly processing of legal douments, it cannot be said

that notaries are “performing a task ‘that go[es] to the heart of

representative government,’” Ambach v. Norwick, supra, 441

U.S. at 75-76, quoting Sugarman v. Dougall, supra, 413 U.S.

at 647.

The essentially ministerial functions performed by notaries

are thus worlds apart from the functions performed by state

employees in those cases which have held that restrictions on

aliens served “political” ends. For example, notaries public

cannot make arrests or recommend revocation of an in-

dividual’s liberty, as could the policemen in Foley and the

deputy probation officers in Cabell, who exercise the coercive

power of the state. Nor are the functions of notaries com-

parable to the responsibilities of public school teachers, who

are charged with inculcating in young children “fundamental

values necessary to the maintenance of a democratic political

system,” Ambach v. Norwick, supra, 441 U.S. at 77. While

notaries do facilitate the carrying out of routine legal transac-

tions, surely it cannot be said that by attesting to a signature

on a deed or by swearing in a witness at a deposition, a notary

is performing functions that are ‘so bound up with the opera-

tion of the State as a governmental entity as to permit the ex-

clusion from those functions of all persons who have not

become part of the process of self-government.” /d. at 73-74.

19

Cabell specified that ‘political’ functions must involve

“discretionary decisionmaking, or execution of policy, which

substantially affects members of the political community.”

Id. at 440-41, quoting Foley v. Connelie, supra, 435 U.S. at

296. However, as Judge Ingraham’s dissent correctly points

out, the majority opinion read this language as asking

whether a notary public exercises any discretion in perform-

ing his or her duties, rather than whether the exercise of that

discretion “would reveal a governing role” (Pet. App. 26a).

The court of appeals concluded that this standard had been

met because notaries “are involved in countless matters of

importance to the day-to-day functions of state government”

(Pet. App. 23a). However, giving aliens discretion to notarize

a will is not on a par with giving aliens the discretion to make

an arrest or to decide how to teach American history to school

children, as was the situation in Foley and Ambach,

respectively. Indeed, Cabell expressly cautioned that its stand-

ard should not be broadly interpreted, since “almost any

government official can be understood as participating in the

execution of broad public policies.” 454 U.S. at 441 n.7.

Thus, if the court of appeals’ analysis is followed, and

notaries are found to be operating at “the heart of represen-

tative government,” id. at 440, then it is hard to imagine what

state function would not qualify as being so “important” that

discrimination against resident aliens could be judged under

the less demanding standard of review. In effect, what began

in Sugarman as an exception to the general rule of strict

scrutiny will have swallowed the rule whole.’

7 Also undermining the State's position that notaries serve a sensitive

“political” role in state government is the fact that there are so many of them. In

1977, the last year for which published figures are readily available, Texas had

240,000 notaries — more than any other state. R. Rothman, supra note 2, at 181.

According to the Secretary of State's office, that number has grown to 358,293 as

of 30 November 1983, and thus there are more notaries in Texas than there are

residents of Austin, the state capital (1980 population 345,496).

20

Finally, the State’s argument that its statute serves

“political” rather than “‘economic”’ ends relies heavily on the

fact that petitioner is not required to become a notary public

in order to keep his current job (Bernal Deposition at 8). See

Brief in Opposition at 3. What the State seems to be arguing

is that if the identifiable economic effects of a citizenship re-

quirement are minimal, then the restriction comes within the

‘political’ category. Neither Cabell nor any earlier case sup-

ports such an interpretation, and reliance on petitioner's cur-

rent employment situation misses the point. Even though Mr.

Bernal will not be fired if he loses this case, the Texas statute

makes him ineligible for future paralegal jobs which may re-

quire hi: to be a notary public. In addition, the Texas statute

can aa’ ely affect other aliens in their quest for employ-

ment. For example, an employer may not explicitly require an

applicant for a secretarial or a paralegal post to be a notary

public. However, if there are two applicants who are other-

wise equally qualified, one of whom is a notary and one of

whom is not, the employer may, quite sensibly, choose the

former applicant.®

* Taken to its logical conclusion, the State's reliance on this factor would seem

to suggest that strict scrutiny is limited to those situations in which a restriction

totally denies a lawful alien the ability to earn a livelihood in a given field. Support

for such an interpretation is not to be found in the case law, however, and several

examples will illustrate the point.

A restriction on an alien's ability to apply for a state scholarship does not mean

that he or she will be automatically denied a college education, since other scholar-

ships may be available. Similarly, even if an alien cannot be employed.in a state's

civil service as a typist or senior clerk, that does not mean that he or she lacks other

job opportunites in this line of work. Finally, a resident alien may be able to pursue

a career as a law professor without being a member of a state bar. That does not

mean, however, that a restriction on practicing law would have no “economic”

consequences, since the professor may decide to leave academia and represent

private clients or seek to supplement his or her law school salary with outside

work. Yet in each of these instances, this Court has determined that restrictions on

tawful aliens fall on the “economic” rather than the “political” side of the equa-

tion and has judged the restriction under strict scrutiny analysis. See Nyquist v.

Mauciet, supra; Sugarman v. Dougall, supra; in re Griffiths, mpra. The same

reasoning should apply here as well.

21

a

For these reasons, Cabell and the similar cases bolster peti-

tioner’s argument that the Texas statute should be judged

under strict scrunity analysis, and the court of appeals misap-

plied Cabell in concluding that the statute involved

“political” goals. In the next portion of this brief, we shall

demonstrate why, even if the statute is judged under the less

demanding “rational relationship” test, it is still unconstitu-

tional.

D. There Is No Rational Relationship Between the

Ban on Aliens Serving as Notaries Public and

the Achievement of a Legitimate State Interest.

This Court has stated that, when a state classification in-

volves a sensitive government position, a court should only

inquire whether there is a “rational relationship between the

interest sought to be protected and the _ limiting

classification.” Ambach v. Norwick, supra, 441 U.S. at 74,

quoting Foley v. Connelie, supra, 435 U.S. at 296. In con-

cluding that this standard had been satisfied, the court of ap-

peals stated: “‘The citizenship restriction in art. 5949(2) bears

a rational relationship to the state’s interest in the proper and

orderly handling of a countless variety of legal documents of

importance to the state’’ (Pet. App. 24a). This analysis is

simply not enough to support the State’s argument.

Petitioner acknowledges that a state may take steps to

assure that only those people who are trustworthy and who

understand the legal significance of a notary’s duties are com-

missioned, thereby facilitating the execution and processing

of legal documents and ultimately the smooth operation of

State government. But pointing to the importance of a

notary’s function does not end the analysis. Instead, the State

must go further and demonstrate how its goal of orderly ex-

ecution and processing of notarized documents is rationally

advanced by the blanket exclusion of all lawful resident aliens

who are otherwise qualified to become notaries. This the

State has failed to do. There is no evidence that aliens are so

22

incompetent or untrustworthy that, notwithstanding the

regulations the State has imposed on notaries (see pp. 14-15,

supra), a wholesale ban is reasonable in order to prevent an

unacceptable increase in the number of legally defective

documents.

Nor can the state’s classification be regarded as a rational

way of achieving a goal of efficient state operations when one

recalls that Texas allows aliens to serve as official court

reporters who, like notaries, administer oaths and apparently

do so in a way that does not disrupt the judicial process. And

if the state believes that allowing aliens to serve as notaries

would disrupt the smooth functioning of state government, it

is hard to understand why it has imposed no ‘citizenship

restriction on its Secretary of State, even though he or she

performs many important state functions, including the

licensing of notaries public. Even if the Court should con-

clude that this case involves a “political” rather than an

“economic” classification, the State has failed to meet its

burden under the “rational relationship” standard, and the

statute cannot stand.

>. 3

CONCLUSION

For the foregoing reasons, the judgment of the court of ap-

peals should be reversed and remanded with instructions to

reinstate the judgment of the district court.

Respectfully submitted,

CORNISH F. HITCHCOCK

(Counsel of Record)

ALAN B. MORRISON

JOHN CARY SIMS

Public Citizen Litigation Group

Suite 700

2000 P Street, NW

Washington, D.C. 20036

(202) 785-3704

THOMAS SULLIVAN

2 DENIS A. DOWNEY

Downey & Sullivan

1185 F.M. 802, Suite 3

Brownsville, Texas 78520

(512) 544-0561

Attorneys for Petitioner

January 1984