Can a state require someone to live there for a year before letting them become a notary public?

Plain-English summary

In 1987, Maryland's Secretary of State asked the Attorney General whether a one-year durational residency requirement for the appointment of notaries public was constitutional. Under Article 68 of the Maryland Code, a person appointed as a notary had to have lived in Maryland for one year and in the senatorial district and subdistrict of appointment, with narrower exceptions for court reporters and for notaries transferring an out-of-state commission.

The Attorney General concluded that the requirement was constitutional under both the Equal Protection Clause and the Privileges and Immunities Clause. On equal protection, the opinion reasoned that because a notary public is an appointed office rather than an elected one, the residency rule does not touch a fundamental right like voting, and it does not significantly burden the constitutional right to interstate travel because becoming a notary is a minor economic opportunity rather than a vital necessity like welfare or emergency medical care. That meant the requirement only had to pass the deferential "rational basis" test, which the opinion found it easily met, given the State's interest in appointing notaries who are already familiar with Maryland law and institutions and who have had time to establish their character and community ties. On the separate question of the Privileges and Immunities Clause, which restricts a state's ability to disadvantage citizens of other states in pursuing an ordinary living, the opinion concluded the Clause likely did not even apply, because the clerical, ministerial nature of notarial work does not implicate the kind of nationally important occupational interest the Clause protects. Even assuming the Clause did apply, the opinion expressed doubt that Maryland's justifications would satisfy the stricter substantiality test the Clause demands, given the Supreme Court's rejection of similar arguments for excluding out-of-state lawyers from a state bar.

Currency note

This opinion was issued in 1987. 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

Could Maryland require a new resident to wait a year before becoming a notary public in 1987?
According to this opinion, yes. The Attorney General concluded that the one-year residency requirement in Article 68, §1(b)(1) did not violate the Equal Protection Clause because appointment as a notary is not a fundamental right and the requirement only needed to satisfy rational basis review, which the State's interest in familiarity and community ties satisfied.

Did the one-year wait for notaries treat newcomers differently based on where they came from, in a way the Constitution forbids?
The opinion concluded that the Privileges and Immunities Clause, which limits a state's power to disadvantage out-of-state citizens in pursuing an ordinary occupation, likely did not apply at all here, since the ministerial duties of a notary do not rise to the level of a nationally significant occupational interest like the practice of law. The opinion did note that if a court disagreed and found the Clause applicable, Maryland's justifications might not hold up as well under that stricter test.

Did every kind of notary applicant face the same one-year rule?
No. The opinion recounted that Article 68 exempted official court reporters, and out-of-state court reporters applying for a Maryland notarial commission, from the residency requirement entirely, and gave a notary already commissioned in another state who moved to Maryland a shorter six-month residency requirement rather than the full one year.

Background and statutory framework

Article 68, §1(b)(1) of the Maryland Code required that every person appointed as a notary public be a resident of Maryland for one year before appointment and a resident of the specific senatorial district and subdistrict from which he or she was appointed. The statute carved out exceptions: official court reporters appointed by a Maryland court, and out-of-state court reporters seeking a Maryland notarial commission, were exempt from the residency requirement altogether, while a notary already commissioned in another state who relocated to Maryland faced only a six-month residency requirement rather than a full year.

The opinion analyzed the requirement under two distinct constitutional theories. Under the Equal Protection Clause, the threshold question was the level of judicial scrutiny: strict scrutiny applies to classifications touching a suspect class or a fundamental right, heightened scrutiny applies to classifications affecting important personal interests, and rational basis review applies to everything else. Because a notary public in Maryland holds an appointive rather than elective office, the opinion found no fundamental right of voters was implicated, and after reviewing federal case law on durational residency requirements for welfare benefits, free medical care, and voting (all of which the courts have protected more heavily) as against college tuition, harbor mooring rates, and interscholastic athletics (where courts had allowed residency conditions under rational basis review), the opinion placed the one-year notary requirement in the latter, less demanding category. It reasoned that only in the context of candidates for elective office had a one-year wait sometimes failed rational basis review, and even that was tied to the specific office; a one-year wait for an appointive office like notary was, in the opinion's view, unlikely to be found unreasonable.

Under the Privileges and Immunities Clause, the opinion applied the two-part test from Supreme Court of New Hampshire v. Piper: first, whether the interest is a protected "privilege," and second, if so, whether the state can show a substantial reason for treating nonresidents differently that bears a substantial relationship to the state's objective. The opinion distinguished the "noncommercial" special role the Supreme Court found in the legal profession, which justifies treating out-of-state lawyers as within the Clause's protection, from the largely clerical and ministerial duties of a notary public, and concluded the Clause likely did not apply to the notary residency requirement at all. The opinion nonetheless cautioned that if a court found the Clause applicable, Maryland's justifications for the residency requirement might not survive the Clause's more demanding substantiality test, since the Supreme Court had already rejected similar justifications (familiarity with local rules, ethical behavior, availability, and volunteer participation) when New Hampshire tried to use them to exclude nonresident lawyers from its bar in Piper.

Citations

Statutes:

• Article 68, §1(a)(1) (senatorial approval process for notary appointment)
• Article 68, §1(b)(1) (one-year residency requirement for notary appointment)
• Article 68, §1(b)(2) (exemption for official court reporters)
• Article 68, §1(b)(3) (exemption for out-of-state court reporters applying for a Maryland notarial commission)
• Article 68, §1(b)(4) (six-month residency requirement for a notary already commissioned in another state)
• Article 68, §§3 and 4 (powers and duties of Maryland notaries public)
• Article IV, §45 of the Maryland Constitution (notary public is an appointive, not elective, office)
• Chapter 86, Laws of Maryland 1801 (original enactment of the notary residency requirement)
• Chapter 201, Laws of Maryland 1980 (reduced the residency requirement from two years to one year)
• Article IV, §2 of the United States Constitution (Privileges and Immunities Clause)

Cases:

• Sosna v. Iowa, 419 U.S. 393, 406 (1975)
• Martinez v. Bynum, 461 U.S. 321, 328-29 (1983)
• Hornbeck v. Somerset County Board of Education, 295 Md. 597, 641-42 (1983)
• Shapiro v. Thompson, 394 U.S. 618, 629 (1969)
• Memorial Hospital v. Maricopa County, 415 U.S. 250, 261 (1974)
• Dunn v. Blumstein, 405 U.S. 330 (1972)
• Bruno v. Civil Service Comm'n, 472 A.2d 328 (Conn. 1984)
• Attorney General v. Waldron, 289 Md. 683, 722 (1981)
• Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff'd mem. 401 U.S. 985 (1971)
• Hawaii Boating Ass'n v. Water Transp. Facilities Div., 651 F.2d 661 (9th Cir. 1981)
• Niles v. University Interscholastic League, 715 F.2d 1027 (5th Cir. 1983)
• Marston v. Lewis, 410 U.S. 679 (1973)
• Attorney General v. Soto-Lopez, 476 U.S. 898 (1986)
• Lentini v. City of Kenner, 479 F. Supp. 966, 969 (E.D. La. 1979)
• City of Akron v. Bell, 660 F.2d 166, 169 (6th Cir. 1981)
• Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974), aff'd mem., 420 U.S. 958 (1975)
• Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff'd mem., 414 U.S. 802 (1973)
• White v. Manchin, 318 S.E.2d 470, 488-89 (W.Va. 1984)
• Green v. McKeon, 468 F.2d 883 (6th Cir. 1972)
• Brill v. Carter, 455 F. Supp. 172 (D. Md. 1978)
• Alexander v. Kammer, 363 F. Supp. 324 (E.D. Mich. 1973)
• Wellford v. Battaglia, 343 F. Supp. 143 (D. Del. 1972), aff'd, 485 F.2d 1151 (3d Cir. 1973)
• Moser v. Howard County Board, 235 Md. 279 (1964)
• Taggart v. Mandel, 391 F. Supp. 733 (D. Md. 1975)
• Walker v. Yucht, 352 F. Supp. 85, 96-97 (D. Del. 1972)
• Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985)
• Baldwin v. Fish & Game Comm'n, 436 U.S. 371, 383 (1978)
• United Bldg. & Constr. Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984)
• Hogan v. Hartwell, 7 So. 2d 889, 891 (Ala. 1942)
• Heiser v. Rhodes, 305 F. Supp. 269, 272 (S.D. Ohio 1969)
• International Org. of Masters, Mates & Pilots v. Andrews, 626 F. Supp. 1271, 1282-83 (D. Alaska 1986)
• Bernal v. Fainter, 467 U.S. 216 (1984)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

NOTARIES PUBLIC

Constitutional law—Equal Protection—Privileges And Immunities—Durational Residency Requirement For Notaries Public Is Constitutional.

October 30, 1987

The Honorable Winfield M. Kelly, Jr.
Secretary of State

You have requested our opinion on the constitutionality of the one-year durational residency requirement that applies to the appointment of notaries public. Article 68, §1(b)(1) of the Maryland Code provides that "[e]very person appointed shall be . . . a resident in this State for a period of 1 year prior to appointment, and a resident of the senatorial district and subdistrict from which he or she is appointed."1

For the reasons given below, we conclude that Maryland's one-year residency requirement for the appointment of notaries public is constitutional.

I
Equal Protection

A. Introduction

A durational residency requirement means that, for a given purpose, residents of a state are classified solely on the basis of the date on which they entered the state. A classification of this kind raises serious questions under the Equal Protection Clause of the Fourteenth Amendment.2 And, indeed, durational residency requirements have been found to violate the Equal Protection Clause in a variety of contexts. However, as the Supreme Court wrote in a case sustaining a durational residency requirement, "none of [the Court's] cases intimated that the States might never impose durational residency requirements, and such a proposition was in fact expressly disclaimed." Sosna v. Iowa, 419 U.S. 393, 406 (1975).

As is true of equal protection issues generally, a crucial preliminary matter is the determination of the standard of review. The Court of Appeals has distilled the controlling principles into this summary:

"'Strict scrutiny' is required of a legislative classification when it creates a distinction based upon 'suspect' criteria or when it deprives, infringes upon, or interferes with personal rights or interests deemed to be 'fundamental.' Laws which are subject to this rigorous standard violate the equal protection guarantee unless the State can demonstrate that the statute is necessary to promote a compelling governmental interest. A suspect class is a category of people who have experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Classification based on race, national origin and ancestry are several examples of such suspect criteria. Rights or interests are 'fundamental' for purposes of equal protection analysis under the fourteenth amendment if they are 'explicitly or implicitly' guaranteed by the federal constitution. Fundamental rights include, among others, those guaranteed by the first amendment, the right to vote, the right of interstate travel, the right of equal access to a criminal appeal, and the right to procreate.

Where neither a suspect class or a fundamental right or interest is involved or impaired, or rights or classes which would trigger heightened review are implicated, the least demanding of review is implied. Under this standard, a statutory classification will be invalidated only if the means chosen by the legislature are wholly irrelevant to achievement of the State's objective. This 'deferential' review of legislative classification, variously referred to as the 'reasonable' or 'rational' basis test, upholds the statute when any state of facts reasonably may be conceived to sustain it." Hornbeck v. Somerset County Board of Education, 295 Md. 597, 641-42 (1983) (citations omitted without ellipsis).3

A durational residency requirement does not implicate a suspect classification. Hence, we turn to a consideration of whether the durational residency requirement of Article 68, §1(b)(1) interferes with a fundamental right and therefore would be subject to strict scrutiny.

B. Durational Residency Requirements—Impact on Fundamental Rights

"[A]ll citizens [are] free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Shapiro v. Thompson, 394 U.S. 618, 629 (1969). A one-year residency requirement for welfare benefits abridged this fundamental right: "An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute." 394 U.S. at 629. By blocking access for a significant period of time to a vitally important government entitlement program, the durational residency requirement at issue in Shapiro in effect penalized interstate migration.

As the Supreme Court later characterized the point, "the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the State to which they migrate as are enjoyed by other residents." Memorial Hospital v. Maricopa County, 415 U.S. 250, 261 (1974) (emphasis added) (durational residency requirement for free medical care subject to strict scrutiny). Thus, a durational residency requirement that prevents new residents from voting for a substantial period of time affects a basic right and so penalizes interstate travel; therefore, it is subject to strict scrutiny review. Dunn v. Blumstein, 405 U.S. 330 (1972). So, too, might a durational residency requirement that prevents new residents from pursuing career advancement. Bruno v. Civil Service Comm'n, 472 A.2d 328 (Conn. 1984). Cf. Attorney General v. Waldron, 289 Md. 683, 722 (1981).

But not every governmental benefit or opportunity is so important that its temporary denial, through a durational residency requirement, impermissibly penalizes persons who have exercised their right to travel. Courts have applied rational basis review, and have sustained, durational residency requirements for various benefits and privileges that are not necessities like welfare benefits or medical care, for example, reduced college tuition, Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff'd mem. 401 U.S. 985 (1971); preferential rates for mooring privileges in recreational boat harbors, Hawaii Boating Ass'n v. Water Transp. Facilities Div., 651 F.2d 661 (9th Cir. 1981); and the opportunity to participate in interscholastic athletics, Niles v. University Interscholastic League, 715 F.2d 1027 (5th Cir. 1983).

Along with the nature of the interest affected, the courts also look to the duration of the disparate treatment brought about by the residency requirement. Compare, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972), with Marston v. Lewis, 410 U.S. 679 (1973). The longer a new resident is subject to a disadvantage, the more likely it is that the disadvantage will penalize interstate migration. A permanent disadvantage will likely be subject to strict scrutiny even if the interest affected is merely "substantial" or "significant," rather than "vital." Attorney General v. Soto-Lopez, 476 U.S. 898 (1986) (veteran's preference).

Perhaps the most litigated type of durational residency requirement is that applicable to candidates for elective office. The courts have been split over the proper standard of review. See generally Annotation, Validity of Requirement That Candidate or Public Officer Have Been Resident of Governmental Unit for Specified Period, 65 A.L.R.3d 1048, 1064-67 (1975). Those applying strict scrutiny emphasize the impact on voter choice. E.g., Lentini v. City of Kenner, 479 F. Supp. 966, 969 (E.D. La. 1979). Those applying a lesser standard emphasize that, because candidacy "is not itself a fundamental right (such as voting) nor a basic necessity of life (such as welfare benefits for the poor), the compelling state interest test is inappropriate." City of Akron v. Bell, 660 F.2d 166, 169 (6th Cir. 1981).

Even under strict scrutiny, durational residency requirements for candidates have sometimes survived. E.g., Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974), aff'd mem., 420 U.S. 958 (1975); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff'd mem., 414 U.S. 802 (1973). See White v. Manchin, 318 S.E.2d 470, 488-89 (W.Va. 1984) (collecting cases).4 On the other hand, durational residency requirements typically fail equal protection review, sometimes even under rational basis review, when the office in question is local and the residency period exceeds one year. See, e.g., Green v. McKeon, 468 F.2d 883 (6th Cir. 1972) (two years for city office); Brill v. Carter, 455 F. Supp. 172 (D. Md. 1978) (four years for county office); Alexander v. Kammer, 363 F. Supp. 324 (E.D. Mich. 1973) (five years for city commission); Wellford v. Battaglia, 343 F. Supp. 143 (D. Del. 1972), aff'd, 485 F.2d 1151 (3d Cir. 1973) (five years for mayor).5

C. Article 68, §1(b)(1)—Impact on Fundamental Rights

In Maryland, the constitutional position of notary public is recognized as a State public office, and a commissioned notary public in Maryland is an officeholder in the traditional sense. Moser v. Howard County Board, 235 Md. 279 (1964). See also Taggart v. Mandel, 391 F. Supp. 733 (D. Md. 1975). However, the office is appointive, not elective. Article IV, §45 of the Maryland Constitution. Therefore, no fundamental right of voters is affected by the residency requirement for notaries public.

Moreover, we do not believe that a one-year durational residency requirement for notaries public otherwise significantly burdens the right to travel. As one court put it, in rejecting the argument that a lengthy residency requirement for Governor penalized interstate migration: "[B]ecause of the nature of the residency requirement, the relationship between it and the right to travel is indirect and remote. . . . It cannot be seriously argued that the inability to run for Governor is a real impediment to interstate travel." Chimento v. Stark, 353 F. Supp. at 1218. See also Walker v. Yucht, 352 F. Supp. 85, 96-97 (D. Del. 1972). But see Brill v. Carter, 455 F. Supp. at 174 (four-year residency requirement for county office infringes upon right to travel). In our view, it cannot be argued seriously that a wait of one year before a new resident may become a notary public is a real impediment to interstate travel. Surely the opportunity to become a notary public is not a "vital" government benefit or privilege, akin to welfare or medical treatment. Cf. Memorial Hospital v. Maricopa County, 415 U.S. at 261. And, even if the opportunity were thought "significant," cf. Attorney General v. Soto-Lopez, 106 S.Ct. at 2324, the duration of its denial, one year, is the same as that typically sustained as to candidacy for elective office.

For these reasons, we believe that rational basis review applies to Article 68, §1(b)(1).

D. Interests Underlying Residency Requirement

Maryland's notary public residency requirement was first enacted nearly two centuries ago. Chapter 86, Laws of Maryland 1801.6 For the purposes of rational basis review, this ancient requirement conceivably serves several legitimate governmental interests. First, the duties of the State's notaries involve them in matters of governmental, legal, and commercial importance. Therefore, the State has an interest in qualifying only notaries public who, through their residency, have had an opportunity to familiarize themselves with the policies, the law, and the institutions of the State.7 As the senatorial approval process in Article 68, §1(a)(1) and (c) evidences, the State also has an interest in assuring that responsible persons familiar with the applicant have time and opportunity to investigate the moral character and integrity of prospective notaries public. Finally, the General Assembly might also have recognized a value in having its notaries establish a stake in the community through the normal legal relations and responsibilities concomitant with a period of residence.

In short, the one-year residency requirement in Article 68, §1(b)(1) bears a reasonable relation to legitimate State interests.8 Because the requirement is properly subject merely to rational basis review, it does not violate the Equal Protection Clause.

II
Privileges and Immunities

A. The Piper Case

In Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), a Vermont resident was denied admission to the New Hampshire Bar under a rule of the New Hampshire Supreme Court that limited bar admission to residents of New Hampshire. The United States Supreme Court struck down the rule, holding that it violated the Privileges and Immunities Clause of the Constitution.9

The primary purpose of the Privileges and Immunities Clause is to prevent "economic protectionism." Piper, 470 U.S. at 285 n. 18. However, "it is '[o]nly with respect to those "privileges" and "immunities" bearing on the vitality of the nation as a single entity' that a State must accord residents and nonresidents equal treatment." 470 U.S. at 279 (quoting Baldwin v. Fish & Game Comm'n, 436 U.S. 371, 383 (1978)).

In Piper, the Supreme Court found that the practice of law is one such protected "privilege." Like other occupations, "the practice of law is important to the national economy." 470 U.S. at 281. Moreover, "the legal profession has a noncommercial role and duty" that invokes the protection of the Privileges and Immunities Clause, namely, the lawyer's role in "the vindication of federal rights" and the "champion[ing of] unpopular causes." Id.

Once the Clause is found to be applicable, a state that discriminates against nonresidents must carry a heavy burden if it is to justify the discrimination. It must show that "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonrespondents bears a substantial relationship to the State's objective." 470 U.S. at 284. The justifications offered by the Supreme Court of New Hampshire for its refusal to admit nonresidents were that "nonresident members would be less likely: (i) to become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State." 470 U.S. at 285. The Supreme Court concluded that all of these failed to meet the test of "substantiality" required by the Privileges and Immunities Clause. Id.

B. Application to Article 68, §1(b)(1)

The Privileges and Immunities Clause applies to a distinction between residents and nonresidents if the State is "imposing unreasonable burdens on citizens of other States in their pursuit of common callings within the State . . . ." Baldwin v. Fish & Game Comm'n, 436 U.S. at 383.10 Here, there is no "unreasonable" burden on a nonresident's occupational endeavors; indeed, there is hardly a cognizable burden at all. The true effect of the residency requirement in Article 68, §1(b)(1) is that a nonresident who might otherwise want to augment the income from his or her real job with notary fees is deprived, for one year, of that slight additional remuneration.11 But a residency requirement having only this effect does not impair the privilege of occupational opportunity. International Org. of Masters, Mates & Pilots v. Andrews, 626 F. Supp. 1271, 1282-83 (D. Alaska 1986).12

Moreover, the Maryland requirement does not run counter to the "noncommercial" aspects of the Privileges and Immunities Clause identified in Piper, the protection of those, like lawyers, who advance other interests "important to the 'maintenance or well-being of the Union . . . .'" 470 U.S. at 281 (quoting Baldwin v. Fish & Game Comm'n, 436 U.S. at 383). To be sure, the acts of a notary public are necessary and important to the daily functions of government and commerce. But a notary public, whose duties are essentially clerical and ministerial, does not advance the interests of national unity in the way that a lawyer at least potentially can. See Bernal v. Fainter, 467 U.S. 216 (1984).

In short, there is no indication that Maryland's one-year residency requirement for notaries has an adverse impact on any of "those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity . . . ." Baldwin, 436 U.S. at 383. Therefore, it is not subject to the strictures of the Privileges and Immunity Clause.

However, if the Clause were held to be applicable to Article 68, §1(b)(1), we cannot predict that the residency requirement would be found to be sufficiently justified. As discussed in Part I D above, the one-year residency requirement serves the State's interest in protecting citizens from those who are not familiar with the law, policies, and institutions of the State and from those who are not seriously committed to the interests of the community. It also allows time to insulate the position from those who do not have the moral character and integrity demanded by this public office.

These justifications are surely enough to satisfy rational basis equal protection review. But in light of the Supreme Court's rejection of New Hampshire's comparable arguments in Piper, we doubt that they would be substantial enough under the Privileges and Immunities Clause. Thus, if a court were to disagree with our belief that the Clause is inapplicable, Article 68, §1(b)(1) would not likely survive.

III
Conclusion

In summary, it is our opinion that the one-year residency requirement in Article 68, §1(b)(1) violates neither the Equal Protection Clause nor the Privileges and Immunities Clause of the United States Constitution.

J. Joseph Curran, Jr., Attorney General
James G. Klair, Assistant Attorney General
Sylvia Wagonheim, Staff Attorney

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Two exceptions apply to court reporters, for whom a notary commission is essential. The residency requirements do not apply to anyone appointed "as an official court reporter by any court of any county or Baltimore City." Article 68, §1(b)(2). They also do not apply to "out-of-state court reporters applying for appointment as a notary public in this State." §1(b)(3). In addition, a notary public commissioned in a state other than Maryland who moves to this State and applies for a Maryland notarial commission is subject to a six-month residency requirement, rather than a one-year requirement. §1(b)(4).

2 A nondurational residency requirement, which treats all residents alike, does not raise comparable equal protection questions. See Martinez v. Bynum, 461 U.S. 321, 328-29 (1983). However, differential treatment of nonresidents might implicate the Privileges and Immunities Clause. See Part II below.

3 The Court of Appeals also identified the characteristics of an intermediate level of equal protection review, "heightened scrutiny": "'Heightened scrutiny' of a legislative classification is a less exacting standard of review and is applied when a statute impacts upon 'sensitive,' although not necessarily suspect criteria of classification (i.e., gender discrimination), or where a statute affects 'important' personal rights or works a 'significant' interference with liberty or a denial of a benefit vital to the individual. A legislative classification, to withstand heightened scrutiny analysis, must be reasonable, and not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated and circumstanced will be treated alike. This level of review does not tolerate random speculation concerning possible justification for a challenged enactment; rather, it pursues the actual purpose of a statute and seriously examines the means chosen to effectuate that purpose." 295 Md. at 641-42. We do not believe that a durational residency requirement would likely invoke "heightened scrutiny" review. If such a requirement indeed impinged upon important personal rights or vital benefits, it would so affect the right to travel as to invoke strict scrutiny. See Part II B below.

4 As one treatise summarizes: "The Constitution itself requires candidates for federal elective office to meet certain residency standards. Therefore unless the residency requirement is patently unreasonable in length for the particular elective office the courts usually have sustained such qualifications on the right to candidacy." 2 Rotunda, Nowak, & Young, Constitutional Law §18.32, at 633 (1986).

5 One writer summarizes the state of the law as follows: "The trend . . . is for the courts to invalidate local laws, but to uphold state constitutional provisions, which establish durational residency requirements for candidates. Similarly, the courts seem more disposed to invalidate durational residency requirements which deal with city, county, or municipal level offices, and less disposed to invalidate such requirements which deal with state level offices . . . . The length of the required residence has frequently been a crucial factor in the court's determination." Annotation, 65 A.L.R. 3d at 1054-56.

6 The two-year residency requirement adopted at the 1801 session of the General Assembly remained unchanged until 1980, when the General Assembly reduced the residency requirement to one year. Chapter 201, Laws of Maryland 1980.

7 Notaries public 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 [the notary's] having administered such oath"; "to receive the 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 [the notary] in virtue of his office." Article 68, §§3 and 4.

8 We are not dissuaded from this view by Taggart v. Mandel, 391 F. Supp. 733 (D. Md. 1975), in which the court held that a citizenship requirement for notaries public violated the Equal Protection Clause, even under rational basis review. In support of this requirement, the State argued that citizenship, which, we note, takes much longer than one year to acquire, would lead to greater familiarity with local custom. The court was unpersuaded, given "the largely ministerial nature of the tasks of a notary public . . . ." 391 F. Supp. 740. See Bernal v. Fainter, 467 U.S. 216 (1984). But the court went on to observe: "[T]o the extent that the State feels that familiarity with the language and customs of this country is a necessary qualification for the position of notary public, the equal protection clause demands that it choose some criteria of selection more narrowly confined to that end." Id. Local residency is one such criterion.

9 The Privileges and Immunities Clause provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Article IV, §2.

10 As we point out in Part I C above, the position of notary public is a public office. The applicability of the Privileges and Immunities Clause to public offices and employment is unclear. See United Bldg. & Constr. Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984). A few older cases stand for the proposition that the Clause applies only to the "private rights of the citizen, and does] not include the right to hold office." Hogan v. Hartwell, 7 So. 2d 889, 891 (Ala. 1942). See also Heiser v. Rhodes, 305 F. Supp. 269, 272 (S.D. Ohio 1969).

11 In the case of a court reporter, for which a notarial commission is a requirement of the position and may, for that reason, be considered a basis of the reporter's livelihood, Article 68, §1(b) imposes no residence requirement on out-of-state court reporters who apply for a notarial commission in Maryland. See note 1 above.

12 At issue in Andrews was a wage differential for certain state employees, given to Alaska residents only. The effect was that nonresident employees earned less for the same work. In holding that the opportunity to receive this wage adjustment was not a privilege protected by the Privileges and Immunities Clause, the court pointed out that, unlike residency requirements that had run afoul of the Clause, the wage differential did not erect economic or other barriers that effectively barred nonresidents "from practicing their profession altogether." 626 F. Supp. at 1283. If, as a matter of economic reality, service as a notary public were itself a means of livelihood, we would view the residency requirement differently; but, in reality, it is not.