Jii v. Rhodes

• Decision Date: 02 September 1983
• Docket Number: Civ. A. No. C-2-82-460.
• Parties: Luke JII, Plaintiff, v. James A. RHODES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

577 F. Supp. 1128

Luke JII, Plaintiff, v. James A. RHODES, et al., Defendants.

Civ. A. No. C-2-82-460.

United States District Court, S.D. Ohio, E.D.

September 2, 1983.

Luke Jii, pro se.

Thomas Martin, Asst. Atty. Gen., Thomas Sant, Columbus, Ohio, for defendants.

OPINION AND ORDER

DUNCAN, District Judge.

Plaintiff Luke Jii, a permanent resident alien, instituted this action seeking to establish his right to become a notary public in the State of Ohio. More specifically, plaintiff seeks a declaratory judgment that R.C. 147.02 is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment insofar as it requires applicants for appointment to the office of Notary Public to be citizens of the United States. Plaintiff has further requested that this Court permanently enjoin defendants from enforcing that statutory requirement.

Jurisdiction

Plaintiff's action arises under the Fourteenth Amendment to the Constitution. This Court has jurisdiction under 28 U.S.C. § 1331(a) and has the power to issue the requested declaratory judgment under 28 U.S.C. §§ 2201 and 2202.

Parties

Plaintiff Jii is a resident of Columbus, Ohio, but is not a citizen of the United States. Defendant Celeste is the Governor of Ohio.¹ Defendant Columbus Bar Association (CBA) is the local organization charged with administering the notary public program.

Procedural Background

Plaintiff Jii, proceeding pro se, filed his original complaint in May 1982, naming the Columbus Bar Association and the State of Ohio as defendants. In response to defendant's motions to dismiss and plaintiff's motion to amend his complaint, the Court dismissed the complaint as against the State of Ohio and allowed plaintiff to amend his complaint to name James A. Rhodes, the then Governor of the State of Ohio, as defendant.

Cross motions for summary judgment were then filed by both plaintiff Jii and defendant Rhodes. Because the Court believed the pleadings were inadequate, a ruling on the motions was postponed pending further briefing. More specifically, defendants were granted 20 days in which to submit supplemental briefs addressing three issues of concern to this Court: (a) the proper scope of constitutional scrutiny in this case; (b) the justification for the citizenship requirement under both the "strict scrutiny" and "rational basis" tests; and (c) the grounds, if any, for distinguishing Ohio's citizenship requirement from those which have been held unconstitutional in other states.² The defendant Columbus Bar Association chose not to provide the requested information and instead filed a supplemental brief which stated that while its Notary Public Committee administered the law, the Bar Association took no position with respect to the constitutionality of R.C. 147.02. Defendant Rhodes, consistent with the apparent lack of interest in or concern with this case, supplemented his original pleadings with an equally terse brief.

This case is once again before the Court for a decision on the parties' cross-motions for summary judgment.

For the reasons that follow, the Court finds that R.C. 147.02, which requires all notaries public to be citizens of the United States, violates the Equal Protection Clause of the Fourteenth Amendment and is therefore unconstitutional. Accordingly, plaintiff's motion for summary judgment is granted and defendants' motions are denied.

Facts

There is no dispute as to any of the material facts in this case. Plaintiff Jii applied to the Columbus Bar Association for a notary public commission in February 1982. Plaintiff's application was denied because he was not registered to vote as required by a CBA rule. The CBA rule is based on R.C. 3503.01 and R.C. 147.02, which make United States citizenship a prerequisite for voter registration and notary public commissions. Under these provisions, plaintiff is precluded from becoming a notary in the State of Ohio.

A notary public is an officer whose duty it is to attest to the genuineness of deeds or writings in order to render them available as evidence of the facts therein contained. 58 Am.Jur.2d. In Ohio, notaries are appointed by the Governor. R.C. 147.01. The appointment is made upon a certificate from a Judge of the Court of Common Pleas, Court of Appeals, or Supreme Court, who attests to the good moral character of the applicant; that the applicant possesses the qualifications and abilities to discharge the duties of the office and that the applicant is a citizen of the county in which he resides. R.C. 147.02. The Governor may appoint and commission as notaries public as many applicants as he considers necessary, who are citizens of this state, and who are 18 years of age or older. R.C. 147.01. Pursuant to R.C. 147.07 a notary public in Ohio may administer oaths required or authorized by law; take and certify depositions; take and certify acknowledgments of deeds, mortgages, liens, powers of attorney, and other instruments of writing; and receive, make and record notarial protests. Furthermore, in taking depositions, notaries shall have the power to compel the attendance of witnesses and to sanction a witness for refusing to testify.

A notary public is a ministerial officer, as that term has been understood so long that "the memory of man runneth not to the contrary." Ex parte Bevan, 126 Ohio St. 126, 130, 184 N.E. 393, 397, aff'd., 289 U.S. 459, 53 S.Ct. 661, 77 L.Ed. 1316 (1933). Thus the power of a notary to commit a witness to jail has been declared ministerial, not judicial, in the sense of the Constitution which confers all judicial power upon the courts. DeCamp v. Archibald, 50 Ohio St. 618, 620, 35 N.E. 1056, 1058 (1893). In addition, the Ohio courts have declared that the taking of an acknowledgment is a ministerial, not a judicial, act. Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526 (1887). While notary publics were at one time considered to be state officers exercising governmental functions, Bettman v. Warwick, 108 F. 46 (6th Cir.1901), it is now agreed that insofar as the appointment of notaries public is provided for by statute, they are public officials. State ex rel. Smith v. Johnson, 12 Ohio App.2d 87, 231 N.E.2d 81 (1967).

Having briefly surveyed the historical and present day significance of the office of notary public, the Court now finds it necessary to address the critical legal issues raised by this declaratory judgment action. The decision in this case turns initially upon the resolution of two key issues. First, it is necessary to determine the proper standard of review or level of scrutiny this Court should use in evaluating the statute in question. Second, the Court must determine whether the statute withstands constitutional scrutiny.

After having carefully analyzed the statute in question, this Court is of the opinion that the Ohio statute cannot withstand plaintiff's constitutional challenge. In this respect, the Court notes that it does not believe the level of scrutiny employed is outcome determinative since the Court reaches the same conclusion even when using the rational basis standard of review.³

Discussion

For nearly 100 years lawfully admitted aliens have been considered "persons" within the meaning of the Fourteenth Amendment and thus entitled to equal protection of the laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). There were, however, certain instances where classifications based on alienage withstood constitutional scrutiny. A brief survey of the legal history of discrimination based on alienage may prove helpful to an understanding of this Court's decision.

Historically, discrimination based on alienage fell into one of three categories: restrictions on an alien's ability to work; discrimination in the distribution of state benefits; and citizenship requirements for state employees. In evaluating classifications based upon alienage the courts generally distinguished between classifications for the purposes of distribution of public resources, see, e.g., Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915); and classifications arbitrarily created by the government to be used for reasons other than distribution of public resources. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The former type of classification was often deemed permissible while the latter was not.

The distinctions of these earlier cases became less clear after the decision in Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), wherein the Supreme Court struck down a California statute which prohibited aliens from receiving a license for offshore fishing. In Takahashi, the Supreme Court found that "the power of a state to apply its laws exclusively to alien inhabitants as a class if confined within narrow limits." Id. at 420, 68 S.Ct. at 1143. Prior to this decision, the Supreme Court had almost uniformly held that this form of discrimination did not violate the Fourteenth Amendment because states had a "special public interest" in regulating the use of natural resources. See, e.g., Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914).

Despite the Supreme Court's decision in Takahashi many courts continued to apply the special public interest doctrine. The death knell for the "private-public" distinction was apparently sounded in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). In Graham, the Supreme Court invalidated an Arizona statute that denied certain benefits to resident aliens. In so doing, the court specifically held that a state cannot discriminate against aliens in the distribution of state benefits without showing that the discrimination is necessary to further a compelling...