Taggart v. Mandel

• Decision Date: 27 March 1975
• Docket Number: Civ. A. No. N-73-738.
• Citation: 391 F. Supp. 733
• Parties: Margaret Elizabeth TAGGART v. The Honorable Marvin MANDEL, Governor of the State of Maryland, and the Honorable Fred Wineland, Secretary of State.
• Court: U.S. District Court — District of Maryland

391 F. Supp. 733

Margaret Elizabeth TAGGART v. The Honorable Marvin MANDEL, Governor of the State of Maryland, and the Honorable Fred Wineland, Secretary of State.

Civ. A. No. N-73-738.

United States District Court, D. Maryland.

March 27, 1975.

Harold Buchman and Harry A. E. Taylor, Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen. of Maryland, Fred Oken, Asst. Atty. Gen. of Md., Chief, Civ. Div., and David H. Feldman, Asst. Atty. Gen., of Md., Baltimore, Md., for defendant.

Before WINTER, Circuit Judge, NORTHROP, Chief District Judge, and WATKINS, District Judge.

NORTHROP, Chief District Judge.

Plaintiff, Margaret Elizabeth Taggart, a legal permanent resident alien, instituted this action seeking a declaratory judgment that Md.Ann.Code art. 68, § 1(b) (1970) is unconstitutional under the equal protection clause of the fourteenth amendment insofar as it requires applicants for appointment to the State constitutional office of Notary Public to be citizens of the United States.¹ She has further requested that this Court permanently enjoin defendants from further enforcing that statutory requirement. The defendants are the Governor of the State of Maryland, who has, among the other powers of his office, the power to appoint and remove notaries public, Md.Ann.Code art. 68, §§ 1(a) and 2, and the Secretary of the State of Maryland, who is responsible for the preparation of application forms for appointment as a notary public, and who is the person with whom such applications are filed and is responsible for giving the applicant notice of any action taken thereon. Md.Ann. Code art. 68, § 1(c) and (g).²

Plaintiff's action is alleged to arise under the first, fifth and fourteenth amendments of the Constitution and under 42 U.S.C. §§ 1981 and 1983. This Court has jurisdiction under 28 U.S.C. § 1343(3) and (4), and it has the power to issue the requested declaratory judgment under 28 U.S.C. §§ 2201 and 2202. Upon a finding by the single District Court Judge to whom this case was originally assigned that the constitutional question presented was not insubstantial, a three-judge District Court was convened pursuant to 28 U.S.C. § 2281, and a hearing held. Inasmuch as there are no disputed facts, the case is now before this Court for its decision on the parties' cross-motions for summary judgment. See Fed.R.Civ.P. 56.

THE FACTS

Section 45 of Article IV of the Maryland Constitution provides for the appointment of notaries public "in the manner, for the purpose, and with the powers" prescribed by law. That section is implemented by the provisions of Md.Ann.Code art. 68 (1970), entitled "Notaries Public." Pursuant thereto, notaries public in Maryland are empowered to administer oaths in all matters of a civil nature and to certify that fact under a notarial seal as sufficient evidence of having administered such oath, Md.Ann.Code art. 68, § 3 (Cum. Supp.1974), to receive proof or acknowledgment of all instruments of writing relating to commerce or navigation and such other writings as have been usually proved and acknowledged before notaries public, and to make protests and declarations respecting negotiable instruments and testify the truth thereof under seal concerning all matters done by virtue of his office. Md.Ann.Code art. 68, § 4 (1970). In Moser v. Howard County Board, 235 Md. 279, 201 A.2d 365 (1964), the Maryland Court of Appeals held that the office of notary public in Maryland was a public office for profit, and while noting that the duties of the office were more limited in common law countries than in civil law countries, the Court nonetheless stated that they were "important and essential." Id., 235 Md. at 282, 201 A.2d at 367.

Notaries public in Maryland are appointed by the Governor upon application endorsed by the State Senator representing the district in which the applicant resides. Md.Ann.Code art. 68, § 1 (a). Such appointments are generally for a term of four years and they may be renewed from term to term. Md. Ann.Code art. 68 § 1(d) and (e). In order to qualify for appointment each applicant must be at least eighteen years of age, of good moral character and integrity, a citizen of the United States, a resident of Maryland for a period of two years prior to appointment, and a resident of the senatorial district and subdistrict from which he or she is appointed. Md.Ann.Code art. 68 § 1(b). The citizenship requirement contained in § 1(b) was first adopted in 1801, see An Act Respecting Public Notaries in this State, Md.Laws ch. 86, § 2 (1801), and has been carried down to the present date. See, e.g., Md.Ann.Code art. 68, § 1 (Flack ed. 1939); Md.Ann.Code art. 68, § 1 (Bagby ed. 1924); Md.Code art. 68, § 1 (Poe ed. 1888); Md.Code art. 67, § 1 (1860).

Miss Taggart is a 24-year old native of Ireland. She first arrived in this country on June 25, 1971, and is a legal permanent resident alien, holding Alien Registration No. A30-755-397. She has been a resident of the State of Maryland and of the City of Baltimore since March, 1973, and on July 16, 1973, she filed her intention to become a citizen of the United States.³

Upon first arriving in this country in 1971, Miss Taggart proceeded to St. Cloud, Minnesota, where she enrolled at the St. Cloud Business College. After her graduation from that institution as a stenotypist in March, 1973, Miss Taggart moved to Baltimore, Maryland, where she was employed by the Accelerated Reporting Service. On September 20, 1973, she was appointed an official court reporter with the Supreme Bench of Baltimore City, and she has held that position up to the present time.

An important aspect of Miss Taggart's work, first as a stenotypist with the Accelerated Reporting Service and subsequently as an official court reporter, is an ability to take sworn depositions. In order to undertake that task, however, it is necessary that she be able to notarize such depositions. In April, 1973, Miss Taggart therefore expressed her interest in becoming a notary public to State Senator Robert L. Dalton. The latter subsequently wrote a letter to the office of the Attorney General of Maryland setting forth Miss Taggart's position and inquiring if it was possible to make an exception to the citizenship and residency requirements of Md.Ann.Code art. 68, § 1(b). In a letter dated May 30, 1973, Henry R. Lord, Deputy Attorney General of Maryland, replied that a pending application for United States citizenship did not comply with the unambiguous mandate of § 1(b), and he suggested that a person disqualified from applying for a notary position because of a lack of United States citizenship might want to seek a judicial remedy in a suit testing whether the requirement violates the equal protection clause of the United States Constitution. Plaintiff subsequently initiated the instant action on July 23, 1973.

During the preliminary stages of this case, defendants took the position that there was no actual case or controversy present inasmuch as plaintiff had never formally filed an application for appointment as a notary public. This Court thereafter suspended any further proceedings pending the outcome on a formal application to be submitted by Miss Taggart. After some delays which are not relevant here, Miss Taggart's formal application, endorsed by Senator Dalton, was forwarded to the Secretary of State of Maryland on February 20, 1974. In response to a request for advice with respect to the completed application, the Office of the Attorney General of Maryland advised the Secretary of State by letter dated May 31, 1974, of its position that the citizenship requirement of § 1(b) was not violative of the equal protection clause of the fourteenth amendment. By a subsequent letter dated June 26, 1974, the defendant Secretary of State informed Miss Taggart of the defendant Governor's decision not to approve her application in view of the explicit citizenship requirement contained in § 1(b).

DISCUSSION

In support of her position that the citizenship requirement of Md.Ann.Code art. 68, § 1(b) is violative of the equal protection clause of the fourteenth amendment, plaintiff cites the recent decisions by the Supreme Court in Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) and In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). In those cases, the Supreme Court held respectively that a provision of New York's civil service law that only citizens could hold permanent positions in the competitive class of the state civil service and that a Connecticut court rule restricting admission to the bar to citizens were violative of the equal protection clause. According to plaintiff, those decisions clearly established the principle that classifications based on alienage are inherently suspect and "subject to close judicial scrutiny." In re Griffiths, supra, 413 U.S. at 721-22, 93 S.Ct. at 2854-55, 37 L.Ed.2d at 914-915; Sugarman, supra, 413 U.S. at 642, 93 S.Ct. at 2847, 37 L.Ed.2d at 859. See also Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541 (1971). Thus, in order to justify its use of a suspect classification in the instant case she contends that the State must show "that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is `necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest." In re Griffiths, supra, 413 U.S. at 721-22, 93 S.Ct. at 2855, 37 L.Ed.2d at 915. She submits that the various grounds raised by defendants in support of the instant classification cannot withstand the requisite scrutiny.

Defendants, however, contend that the decisions cited by plaintiff are inapposite as they dealt solely with the constitutionality of broad state restrictions relating to welfare and employment of aliens. In contrast, they point out that in the instant case we are dealing primarily with the scope of the plenary...