Bernal v. Fainter, 467 U.S. 216 (1984)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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; Cabell v. Chavez-Salido, 454 U.S. 432. 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. 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 class-wide 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, reversed and remanded.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O’CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 228.