Wisconsin Legislature: vol74-221

74 Op. Att'y Gen. 221, 221 (1985)

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

Section 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. OAG 43-85

November 7, 1985

74 Op. Att'y Gen. 221, 221 (1985)

Douglas La Follette

Secretary of State

74 Op. Att'y Gen. 221, 221 (1985)

You request my opinion whether those provisions of section 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.

74 Op. Att'y Gen. 221, 221 (1985)

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

74 Op. Att'y Gen. 221, 221 (1985)

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).

74 Op. Att'y Gen. 221, 221 (1985)

Section 137.01(1) is applicable to notaries public who are not attorneys and subsection (a) provides that "[t]he governor shall appoint notaries public

who shall be Wisconsin residents

and at least 18 years of age." Subsection (2) provides that "[a]ny

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."

74 Op. Att'y Gen. 221, 221 (1985)

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."

74 Op. Att'y Gen. 221, 222-223 (1985)

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.

74 Op. Att'y Gen. 221, 223 (1985)

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.

74 Op. Att'y Gen. 221, 223 (1985)

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 "[o]ut-of-state lawyers may--and often do--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.

74 Op. Att'y Gen. 221, 223 (1985)

In my opinion, a nonresident does not have a fundamental right to engage in the activities delegated by the Legislature to notaries public. Section 137.01(5), (6), (6m) and (7) provides:

74 Op. Att'y Gen. 221, 223-224 (1985)

(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.