Margarita M. VARGAS and Efrem Bernal, etc., Plaintiffs-Appellees, v. George W. STRAKE, Jr., etc., et al. Defendants-Appellants.
No. 81-2457
United States Court of Appeals, Fifth Circuit.
July 25, 1983.
710 F.2d 190
Finally, any possible prejudice to defendant was cured by the trial judge‘s limiting instruction, set out in the margin.1 AFFIRMED.
Martha H. Allan, Asst. Atty. Gen., John W. Fainter, First Asst. Atty. Gen., Richard E. Gray, Executive Asst. Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, Tex., for Strake.
Theodore C. Hake, Edinburg, Tex., for Saldana.
Roy S. Dale, Brownsville, Tex., for Rivera.
Carinhas & Morrow, Thomas Sullivan, Brownsville, Tex., for plaintiffs-appellees.
Before INGRAHAM, REAVLEY and POLITZ, Circuit Judges.
REAVLEY, Circuit Judge:
This case is an appeal from a district court judgment declaring unconstitutional
This action challenging the constitutionality of
A second party, Efrem Bernal, was later added as an individual plaintiff. Bernal has at all times been and still is a citizen of the Republic of Mexico, but he, too, has been a lawful resident alien in this country for some years now. Bernal has been employed for several years as a paralegal assistant by Texas Rural Legal Aid, Inc. Prior to that, he was employed by AMOS, Inc., a migrant legal services program in Plymouth, Indiana. From 1974 to 1978 Bernal served as a notary public for Marshall County, Indiana.
The defendants/appellants in this action are the Texas Secretary of State and the county clerks of Cameron and Hidalgo counties. The county clerks uniformly require all applicants for the position of notary public to complete a standardized application form, which is then forwarded to the Secretary of State for consideration.
In 1979 Vargas applied to become a notary public in Texas; at that time she was still a citizen of Mexico but lawfully residing within Texas. Pursuant to established procedures, her application was received by the Texas Secretary of State. The record reveals that whenever that office receives applications from noncitizens, it either sets an administrative hearing or, if the applicant is also applying for citizenship, holds the application in abeyance pending final action of federal authorities on the application for citizenship. In Vargas’ case the latter route was followed.
In 1978 Bernal had also applied to become a notary public in Texas. The Secretary of State denied his application. Bernal appealed that decision, obtaining a state administrative hearing, but the result of the hearing was that the Secretary‘s decision was upheld.
In the present action, Vargas and Bernal sought a declaratory judgment pursuant to
Applying a strict scrutiny standard, the court held that the statute was unconstitu
The defendants have brought the present appeal, raising four issues: (1) whether the action is moot as to Vargas, because she is now a United States citizen (and because only the declaratory judgment/injunctive relief portion of the district court‘s order is in issue); (2) whether the court erred in holding that plaintiff Bernal was not required to exhaust administrative remedies (by appealing the denial of his application by the administrative tribunal into the Texas state court system); (3) whether the district court applied an incorrect legal standard in judging the constitutionality of the statute in question (and the connected issue of the constitutionality of the statute under the appropriate standard); and (4) whether Vargas and Bernal were entitled to an award of costs and attorneys’ fees.
Although the issues herein appear to have become moot as to Vargas (because she can reapply for a commission as a notary public having now attained citizenship), they are clearly not moot as to Bernal (nor do the defendants argue that they are). Moreover, Bernal was clearly not required to appeal into the state court system the denial of his application by the administrative tribunal as a prerequisite to challenging the constitutionality of the statute in federal court. See Public Utilities Commission v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 450-51, 2 L.Ed.2d 470 (1958).
We turn to the heart of this controversy—the constitutionality of
Constitutionality of the Citizenship Requirement in art. 5949(2)
Noting that classifications based on alienage have generally been subjected to close judicial scrutiny,1 the district court applied a “strict scrutiny” standard in judging the constitutionality of
The latest word from the Supreme Court addressing the sensitive topic of state classifications dealing with aliens may be found in Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982). The district court did not have the benefit of the Court‘s analysis in Cabell, as that decision was handed down by the Supreme Court subsequent to the decision here. With the advantage of the Cabell decision we conclude that the constitutionality of
Writing the majority opinion, Justice White recognized that under the Court‘s holdings in Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) and other cases, “citizenship is not a relevant ground for the distribution of economic benefits, [but] it is a relevant ground for determining membership in the political community.” 454 U.S. at 438, 102 S.Ct. at 739. State restrictions that affect lawfully resident aliens primarily in an economic fashion will be subject to heightened or strict judicial scrutiny. Id.3 Conversely, strict scrutiny will not be applied when the restriction serves primarily a political function:
“[O]ur scrutiny will not be so demanding where we deal with matters resting firmly within a State‘s constitutional prerogatives [and] 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, 413 U.S., at 648, 93 S.Ct., at 2850. We have thus “not abandoned the general principle that some state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self government.” Ambach v. Norwick, 441 U.S. 68, 73-74, 99 S.Ct. 1589, 1593, 60 L.Ed.2d 49 (1979). And in those areas the state‘s exclusion of aliens need not “clear the high hurdle of ‘strict scrutiny,’ because [that] would ‘obliterate all the distinctions between citizens and aliens, and thus depreciate the historic value of citizenship.‘” Foley v. Connelie, 435 U.S. 291, 295, 98 S.Ct. 1067, 1070, 55 L.Ed.2d 287 (1978) (citations omitted).
Id. (footnote omitted).
The Cabell Court also explained that the Sugarman decision should be regarded as establishing a two-step process for determining whether a particular state restriction on legally resident aliens serves political versus economic goals:
First, the specificity of the classification will be examined: a classification that is substantially over or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. The classification in Sugarman itself—all members of the competitive civil service—could not support the claim that it was an element in “the State‘s broad power to define its political community,” 413 U.S., at 643, 93 S.Ct., at 2848, because it indiscriminately swept in menial occupations, while leaving out some of the state‘s most important political functions. Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to “persons holding state elective or important nonelective executive, legislative, and judicial positions,” those officers who “participate directly in the formulation, operation, or review of broad public policy” and hence “perform functions that go
454 U.S. at 440, 102 S.Ct. at 740 (footnote omitted). Thus, our inquiry in the present case should be whether the citizenship restriction imposed by Texas on the position of notary public serves political or economic goals, applying the two-step process described above.
The second step presents this question: Does a notary public in Texas exercise discretion in making decisions which substantially affect members of the political community? Whatever may be thought about the prestige of the office, the importance of the consequences of the official acts of the notary public to the government and courts of the state cannot be denied. The revised civil statutes of Texas contain many references to their deeds and duties.
Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks . . . .
In the stated areas, they possess authority identical to county clerks. With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure 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. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of documents.
Notaries certify to acknowledgements (
We conclude that the office of a notary public in Texas is not a mere job or source of income, and that it is comparable to the positions of school teacher and police and probation officers in importance to the functioning of state government. The notary public may symbolize the power of the political community when administering a solemn oath or demanding certain proof of identity for the execution of a formal document. The citizenship restriction in
REVERSED.
INGRAHAM, Circuit Judge, concurring in part and dissenting in part:
I concur with much of the majority opinion, but I must respectfully dissent from its holding that
The responsibilities and duties of a notary public in Texas are more akin to the authority granted Connecticut lawyers, see In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), than the plenary powers given peace officers, see Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982), state troopers, see Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), or school teachers. See Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). As the Supreme Court noted, “a [Connecticut] lawyer has authority to ‘sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds.‘” In re Griffiths, 413 U.S. at 723, 93 S.Ct. at 2855 (quoting Conn.Gen.Stat.Rev. § 51-85). Thus, the authority accorded Connecticut lawyers encompasses every function performed by Texas notaries public. See supra at 5972. The Supreme Court, however, has stated that “[i]t in no way denigrates a lawyer‘s high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Id. at 724, 93 S.Ct. at 2856. Because the Supreme Court has held that states cannot require citizenship of lawyers, a profession whose responsibilities and duties comprehend more than those of the Texas notary public, I would apply the analysis of In re Griffiths to hold
Despite the clear language in Griffiths declaring that the functions of notaries public are not of the character that justifies excluding noncitizens, the majority at
The majority, however, restates this inquiry as “Does a notary public in Texas exercise discretion in making decisions which substantially affect members of the political community?” Supra at 194. This reformulation focuses on whether notaries exercise any discretion in making the decisions associated with their duties rather than whether their duties involve discretionary decisionmaking or execution of policy, which would reveal a governing role. Accordingly, the majority emphasizes the importance of notaries in the proper and orderly handling of legal documents and their role in the smooth functioning of the state government. Nevertheless, this shifted focus illustrates the clerical nature of the duties of notaries public.
Moreover, when we examine the duties of Texas notaries to determine whether they involve discretionary decisionmaking or execution of policy, we find that notaries perform purely ministerial functions. Unlike the peace officers in Cabell or the state troopers in Foley, notaries public do not “partake of the sovereign‘s power to exercise coercive force over the individual.” Cabell, 454 U.S. at 445, 102 S.Ct. at 743. Neither do notaries exercise the wide discretion enjoyed by teachers in presenting course materials that “inculcat[e] [the] fundamental values necessary to the maintenance of a democratic political system.” Ambach, 441 U.S. at 77, 99 S.Ct. at 1594. Instead, the responsibility of the notary public is “to insure 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.” Supra at 194. While the accurate and conscientious performance of these duties are important for the smooth functioning of the state government, they do not “involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Griffiths, 413 U.S. at 724, 93 S.Ct. at 2856.
Accordingly, I would affirm the district court decision holding