Bernal v. Fainter

• Citation: 467 U.S. 216,104 S.Ct. 2312,81 L.Ed.2d 175
• Decision Date: 30 May 1984
• Docket Number: No. 83-630,83-630
• Parties: Efrem BERNAL, Petitioner, v. John W. FAINTER, Jr., Secretary of State of Texas, et al
• Court: United States Supreme Court

467 U.S. 216

104 S.Ct. 2312

81 L.Ed.2d 175

Efrem BERNAL, Petitioner,

v John W. FAINTER, Jr., Secretary of State of Texas, et al.

No. 83-630.

Supreme Court of the United States

Argued March 28, 1984.

Decided May 30, 1984.

Syllabus

Petitioner, a resident alien, applied to the Texas Secretary of State to become a notary public, who under Texas law authenticates written instruments, administers oaths, and takes out-of-court depositions. Petitioner's application was denied because he failed to satisfy the requirement of a Texas statute (Article 5949(2)) that a notary public be a United States citizen. After an unsuccessful administrative appeal, petitioner (and another individual) brought suit in Federal District Court, claiming that Article 5949(2) violated the Federal Constitution. The District Court ruled in petitioner's favor, concluding that the citizenship requirement, reviewed under a strict-scrutiny standard, violated the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals reversed, holding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test.

Held: Article 5949(2) violates the Equal Protection Clause. Pp. 219-228.

(a) As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. The "political function" exception to the strict-scrutiny rule applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. Under this exception, the standard of review is lowered when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations go to the heart of representative government. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853; Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677. Pp. 219-222.

(b) The "political function" exception is inapplicable to Article 5949(2). Notaries public do not fall within the category of officials who perform functions that go to the heart of representative government merely because they are designated as public officers by the Texas Constitution. The dispositive factor is the actual function of a position, not its source. The focus of the inquiry is whether the position is such that the officeholder will necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population. Although there is a critical need for a notary's duties to be carried out correctly and with integrity, those duties are essentially clerical and ministerial. Texas notaries are not invested with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Cf. In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910. Pp. 222-227.

(c) Article 5949(2) does not meet the applicable strict-scrutiny standard of judicial review. To satisfy such standard, the State must show that the statute furthers a compelling state interest by the least restrictive means practically available. With regard to the State's asserted interest in ensuring that notaries are familiar with Texas law, there is nothing in the record indicating that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State's absolute and classwide exclusion. Furthermore, if the State's concern were truly "compelling," one would expect the State to give some sort of test actually measuring a person's familiarity with the law. The State, however, administers no such test. Similarly inadequate is the State's purported interest in ensuring the availability of notaries' testimony years after their acts. The State failed to advance a factual showing that the unavailability of notaries' testimony presents a real, as opposed to a merely speculative, problem to the State. Pp. 227-228.

710 F.2d 190 (5th Cir.1983), reversed and remanded.

Cornish F. Hitchcock, Washington, D.C., for petitioner.

Mary F. Keller, Austin, Tex., for respondents.

Justice MARSHALL delivered the opinion of the Court.

The question posed by this case is whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying aliens the opportunity to become notaries public. The Court of Appeals for the Fifth Circuit held that the stat- ute does not offend the Equal Protection Clause. We granted certiorari, 464 U.S. 1007, 104 S.Ct. 522, 78 L.Ed.2d 707 (1983), and now reverse.

I

Petitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farm-workers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public.¹ Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions.² The Texas Secretary of State denied petitioner's application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States. Tex.Rev.Civ.Stat.Ann., Art. 5949(2) (Vernon Supp.1984) (hereafter Article 5949(2)). After an unsuccessful administrative appeal, petitioner brought suit in the Federal District Court, claiming that the citizenship requirement mandated by Article 5942(2) violated the Federal Constitution.³

The District Court ruled in favor of petitioner. Vargas v. Strake, C.A. No. B-79-147 (SD Tex., Oct. 9, 1981) (mem.). It reviewed the State's citizenship requirement under a strict-scrutiny standard and concluded that the requirement violated the Equal Protection Clause. The District Court also suggested that even under a rational-relationship standard, the state statute would fail to pass constitutional muster because its citizenship requirement "is wholly unrelated to the achievement of any valid state interest." App. to Pet. for Cert. 11a. A divided panel of the Court of Appeals for the Fifth Circuit reversed, concluding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test because it "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." Vargas v. Strake, 710 F.2d 190, 195 (1983).⁴

II

As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny.⁵ In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.⁶ Applying this principle we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), we struck down a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), we voided a state law that excluded aliens from the practice of civil engineering.

We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the "political function" exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the "political function" exception are outlined by our prior decisions. In Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police "are clothed with authority to exercise an almost infinite variety of discretionary powers" often involving the most sensitive areas of daily life. Id., at 297, 98 S.Ct., at 1071. In Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Id., at 78-79, 99 S.Ct., at 1595-1596. Finally, in Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982), we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals. The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination.

"The exclusion of aliens from basic...