Could Louisiana clerks reject notarized documents missing a notary ID after the 2003 law took effect?

Plain-English summary

Louisiana's 2003 Act 1142 amended R.S. 35:12(D) to direct clerks and other recording offices, starting January 1, 2005, not to accept, file, or record notarized documents missing the notary's identification or bar roll number and the typed or printed names of the notary and witnesses. Another statute, R.S. 9:5212, said mortgage recorders could not refuse or delay recording acts presented to them. The Clerks of Court Association asked how the two fit together.

In February 2004, the AG said there was no conflict yet because Act 1142's recording rule had not taken effect. It expected an apparent conflict in January 2005 and called for legislative clarification. The opinion described ordinary rules for reconciling statutes, but did not provide a final rule for every recording decision after the effective date.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the new notary-number rule already apply in February 2004?

No. The opinion said its relevant recording requirement applied to documents notarized on or after January 1, 2005.

What information did Act 1142 require on a notarized document?

As quoted in the opinion, it required a notary identification or bar roll number and the typed or printed names of the notary and the witnesses for documents covered by the new rule.

Why did the AG see a recording conflict?

The new rule directed clerks and recording offices to reject covered documents lacking those details, while R.S. 9:5212 barred recorders from refusing or delaying acts presented for recording. The AG said the legislature should clarify that apparent conflict.

Background and statutory framework

The opinion sought to give effect to both laws if a fair reading could reconcile them; implied repeal was disfavored. It quoted prior AG opinions on resolving a direct, irreconcilable conflict through rules such as later enactment or greater specificity. The AG found those rules unnecessary before January 2005 and raised the later conflict for legislative attention.

Citations

• R.S. 35:12(D) (notary identification and printed-name requirement).
• R.S. 9:5212 (recording duty).
• Atty. Gen. Op. 95-327 (recorders' role in evaluating documents).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/04-0006

Original opinion text

February 6, 2004
OPINION 04-0006

Mr. Jon A. Gegenheimer
President, Board of Directors
Louisiana Clerks of Court Assn.
11745 Bricksome Ave.
Suite B-1
Baton Rouge, La. 70816

Dear Mr. Gegenheimer:

This office is in receipt of your request for an opinion of the Attorney General in regard to clarification of Act 1142 of the 2003 Legislative Session in light of R.S. 9:5212.

R.S. 35:12(D) as amended by Act 1142 of 2003 is as follows:

On all documents notarized on and after January 1, 2005, the office of notarial records, register of conveyances, or recorder of mortgages in and for the parish of Orleans, every clerk of court and every state office, agency, department or political subdivision shall not accept, file or record any notarized documents which fail to contain the notary identification or bar roll number and the typed or printed name of the notary and the witnesses.

R.S. 9:5212 provides:

In no case can the recorder of mortgages and the parish recorders fulfilling the same duties, refuse or delay the recording of the acts which are presented to them for that purpose or the delivery of the certificates which are required of them as hereafter stated.

This office has observed when there are two sets of laws enacted purporting to govern the same subject matter both provisions are to be given effect whenever possible. Thus, if the acts can be reconciled by a fair and reasonable interpretation, it must be done since the repeal of a statute by implication is not favored and will not be indulged in if there is any other reasonable construction.

However, this office further stated, “It is only where there is a direct and irreconcilable conflict between them that resort may be had to such conflict-resolving rules as the last enacted statute prevailing over the first enacted statute or the more specific statute prevailing over the more general statute.” Atty. Gen. Op. 95-564, 88-195.

Page 2

Mr. Jon A. Gegenheimer
OPINION 04-0006
Page 2

Inasmuch as Act 1142 in amending R.S. 35:12(D) to provides that the clerk of court “shall not accept, file or record any notarized document which fails to contain the notary identification or bar roll number”, does not apply until “on or after January 1, 2005", there is no conflict at this time.

However, in this matter, we note this office stated in Atty. Gen. Op. 95-327 as follows:

In Attorney General Opinion No. 1046-48, p.67, our office opined that “it is not within the discretion of the clerk of court and recorder to determine what acts shall be recorded, but that he is required by law to record the acts which are presented to him.” We further opined that “the question of the validity or sufficiency of documents presented to him for recordation is one for a judicial determination in appropriate actions by the parties at interest.” We affirm this conclusion and adopt it herein.

It appears this will no longer be accurate after January 1, 2005, wherein Act 1142 of 2003 amends R.S. 35:12 to mandate that the office of notarial records, register of conveyances, or recorder of mortgages and every clerk of court “shall not accept, file or record any notarized document which fails to contain the notary identification or bar roll number * * *.”

Accordingly, this should be considered by the legislature, to clarify the conflict that would be occurring in January, 2005 inasmuch as it appears R.S. 9:5212 and R.S.35:12 will be in conflict.

We hopes this sufficiently responds to your inquiry.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY:________
BARBARA B. RUTLEDGE
CCF/bbr
Assistant Attorney General

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Mr. Jon A. Gegenheimer
OPINION 04-0006
Page 3

OPINION 04-0006

73 - Notaries
77 - Officers - Local &
Municipal
R.S. 35:12
R.S. 9:5212

Where acts cannot be reconciled,
the last enacted will prevail, but the
the conflict should be brought to
the attention of the legislature.

Mr. Jon A. Gegenheimer
President, Board of Directors
Louisiana Clerks of Court Assn.
11745 Bricksome Ave.
Suite B-1
Baton Rouge, La. 70816

Date Received:
Date Released: February 6, 2004

BARBARA B. RUTLEDGE
ASST. ATTORNEY GENERAL