Could a Louisiana notary keep notarizing in Jefferson Parish after moving to Mississippi?

Plain-English summary

Representative Debbie Villio asked whether a longtime Louisiana notary could keep performing notarial work in Jefferson Parish after moving her residence to Mississippi. The official opinion concluded that the move abandoned the notarial commission and made it invalid under the residency qualification in La. R.S. 35:191.

The person in the request worked in Louisiana as a paralegal. The AG said the separate provision for a nonresident person licensed to practice Louisiana law who maintained an in-state law office did not apply because the request did not say she was a licensed lawyer.

The AG distinguished the cited federal notary cases. It said Bernal v. Fainter addressed citizenship discrimination against a resident alien, whereas this request concerned nonresidence. It also read Cook v. Miller as rejecting a facial constitutional challenge to a Michigan residency rule and leaving an as-applied issue unresolved. The AG did not decide that Louisiana's residency law was unconstitutional.

Currency note

This opinion was issued in 2023. 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 statewide notarial jurisdiction let the notary live outside Louisiana?
No. The AG said her existing statewide commission still depended on maintaining the statutory residency qualification.

Did working in Louisiana as a paralegal preserve the commission?
No. The nonresident-lawyer provision discussed in the opinion required a Louisiana law license and an in-state law office; the request did not establish the license.

Did the AG find the residency requirement unconstitutional?
No. It distinguished the federal decisions cited in the request and said a court, rather than the AG, would have to make such a determination.

Background and statutory framework

The opinion applied La. R.S. 35:191's residency requirements and noted the statutory address-change notice rule. It also discussed La. R.S. 35:412 for qualifying nonresident lawyers. The AG said a person who loses or surrenders a commission must meet the requirements for a new commission rather than continue under the old one.

Citations and references

Law cited: La. R.S. 35:191; La. R.S. 35:191.3(A); La. R.S. 35:412.

Cases discussed in the opinion: Bernal v. Fainter, 467 U.S. 216; Cook v. Miller, 914 F. Supp. 177.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0064

Original opinion text

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. BOX 94005
BATON ROUGE
70804-9005
Jeff Landry
Attorney General
August 1 0, 2023
OPINION 23-0064

    The Honorable Debbie ViIIio                                    73       NOTARIES- Appointments & Qualifications

District 79
. . La.R.S.35:191.
Louisiana House of Representatives
4203 Williams Blvd, Suite 200
Once a notary has moved their residence to another
state they have abandoned their commission and the
Kenner, LA 70065
commission is invalid

Dear Representative ViIlio:

You have requested an opinion regarding whether a notary public with statewide jurisdiction who has passed the Louisiana State Notary Exam and performed notarial functions for over a decade may continue to perform notarial functions within Jefferson Parish in her employment in the state as a paralegal after having moved her residence to Mississippi.

In order to possess a valid notarial commission, a notary must maintain the qualifications setforth in La. R.S. 35:191(A)(1),1 the first of which is that a notary public be a resident citizen or alien of Louisiana.2 Further, a “resident citizen seeking to be appointed notary public in the parish of his residence or possessing a valid notarial commission in and for a parish based on his residence must be a registered voter of that parish.”3 A notary abandons his or her commission by moving to another state, rendering his or her commission invalid. Nor can a notary remain a registered voter in Louisiana after changing his or her residence to another state. A notary must notify the office of the Secretary of State within sixty days after the date of any change in residential address, mailing address, or both.4

In your request, you questioned whether the paralegal referenced in the request could avail herself of the provisions of La. R.S. 35:412 to continue to serve as a notary after moving to another state. However, that provision pertains to a person licensed to practice law in this state who is not a resident of this state but who maintains an office for the practice of law in this state. Nothing in the request indicates that the paralegal is licensed to practice law in this state, and, thus, La. R.S. 35:412 is inapplicable.

In your request, you refer us to several cases. In Bernal v. Fainter, 467 U.S. 216, the United States Supreme Court struck down a citizenship requirement for notaries in Texas’ notary law as impermissible under the equal protection provision of the 1 La. R.S. 35:191(A)(3).
2 La. R.S. 35:191(A)(1)(a).
La. R.S. 35:191 (B).
La. R.S. 35:191.3(A).

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OPINION 23-0064
Representative Debbie ViIIio
Page 2

Fourteenth Amendment. In doing so, the Supreme Court in Bernalfound that the duties of notaries in Texas were “essentially clerical and ministerial.” Based on that finding the Supreme Court held that the “public function” exception was inapplicable, thereby subjecting the Texas notary requirement to strict scrutiny in an equal protection analysis, which it did not pass. First, the Bernal case does not apply because it addresses a citizenship requirement (the plaintiff was a resident alien of Texas), whereas your request concerns a nonresident (in Louisiana a notary public must be a resident citizen or alien). Moreover, our office addressed the concerns you raised in your request regarding Bernal in La. Attorney General Opinion No. 92-818:

The requirement of residency in the State is not controlled by Bernal v.
Fainter, 467 U.S. 216 (1984) which struck down a Texas statute that prohibited resident aliens from being appointed a notary as a denial of equal protection. The Court noted in Bernel that becoming a notary public in Texas, merely required one to fill out an application that lists one’s name and address and answer four questions pertaining to one’s age, citizenship, residency, and criminal record. We believe the requirement of residency by this State is rationally related to a legitimate state interest in light of the powers and functions of a notary in Louisiana which go beyond merely clerical and ministerial duties of the Texas notary as found by the Court in Bernal.

We must conclude under this states law for appointment of a notarial commission an individual must have a residence in the state, and by court definition this does not include a business location.

La. Atty. Gen. Op. No. 92-818. As we stated in Op. No. 92-818, the Louisiana notary provisions were distinguishable from those under consideration in Bernal; a notary’s powers in Louisiana are more than mere clerical and ministerial duties, and the residency requirement was rationally related to a state interest.

You also refer to Cook v. Miller 914 F. Supp. 177 (W.D. Mich. 1996), and indicate in your opinion request that the court in Cook “held that Michigan’s residency requirement for appointment as a notary public also violated Privileges and Immunities Clause.”5 We read Cook differently. In Cook, the District Court considered a constitutional challenge to Michigan’s requirement that a nonresident attorney licensed to practice law in the state be a citizen of Michigan and a resident of a county therein in order to receive an appointment as a notary public. First, the court found that the Michigan law passed a rational basis test for equal protection under the Fourteenth Amendment. The court also concluded that the requirement did not violate the Commerce Clause of Art. I, §8 of the U.S. Constitution because the Plaintiff did not show that the law unduly burdened interstate commerce or a protectionist motive in enacting the statute. With respect to the privileges and immunities claim, the court held that the plaintiff similarly did not “b[ring] forth enough evidence to prevail on a facial challenge.” Id. at 182. The district court found that the residency requirement was constitutional on its face. In dicta, the

May 24, 2023 Request for an Opinion.

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OPINION 23-0064
Representative Debbie ViIIio
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court observed that on a different showing, the requirement could be unconstitutional as applied. However, the parties did not brief that issue, and the court declined to rule on an issue that was not briefed by the parties. Id. The district court ordered further briefing on the question of whether the law was unconstitutional as applied to the plaintiff, and absent briefing from the defendant, the court would be inclined to issue an injunction against enforcement of the requirement. Id. Nothing further is reported about the case.

In Louisiana, it is well-settled that laws are presumed constitutional.6 Cook v. Miller does not provide authority for a determination that Louisiana’s residency requirement for notaries is facially unconstitutional nor that it would be unconstitutional as applied in the circumstance presented in your request. Any such determination would need to be made by a court of competent jurisdiction. This office is not a trier of fact and does not make such determinations.

Finally, we note that once a notary surrenders his or her notarial commission, voluntarily or by no longer possessing the qualifications of the office, he or she must apply for a new commission and meet all requisites of LA R.S. 35:191 and 35:201 in orderto obtain a valid commission.7

If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JEFF LAN DRY
A,JDRN

Assistant Attorney General

6 See Carver v. Louisiana Dept of Pub. Safety, 201 7-1 340 (La. 1 /30/1 8), 239 So. 3d 226, 230:

All statutory enactments are presumed constitutional, and every presumption of law and fact must be indulged in favor of legality. Moore v. RLCC Technologies, Inc., 95-2621 (La. 2/28/96), 668 So.2d 1 1 35. In the case of City of Shreveport v. Pedro, 1 70 La. 351, 127 So. 865 (La. 1930), this Court explained the basic requirements of a constitutional challenge: “It is elementary that all laws are presumed to be constitutional until the contrary is made clearly to appear, and that he who urges the unconstitutionality of a law must specially plead its unconstitutionality, and show specifically wherein it is unconstitutional.” Pedro, 1 70 La. 351 1 27 So. 865. Similarly, in Johnson v. Welsh, 334 ,

So.2d 395, 396 (La. 1976), the court stated: “It is well settled that all laws are presumed to be constitutional until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized.” The presumption is especially forceful in the case of statutes enacted to promote a public purpose. Polk v. Edwards, 626 So.2d 1128,1132 (La. 1993).

La. Atty. Gen. Op. No. 00-265.