Bernal v. Fainter, 467 U.S. 216 (1984)
Author: Sam Biers

Facts: After requesting notary public certification, Pet, a Mexican national who works as a paralegal for Tx Rural Legal Aid, was denied b/c of their alienage.

Issue(s): Whether the State of Texas statute violates the EP Cl of 14^th by denying aliens the opportunity to become notaries public.

Holding: Yes. where a public job did not involve traditional representative govt’l functions, mainly clerical and ministerial, the political function exception does not apply.  Under Strict Scrutiny, the Tx law banning aliens from becoming notaries public was invalid.

Procedure: Sec of State denied Pet’s application for notary. After unsuccessful administrative appeal Pet filed in D Ct which held in favor of Pets.  Divided panel of Ct of App held statute does not offend EP Cl b/c rational relationship the law relates to the state’s interest in the proper an orderly handling of countless varieties of legal documents important to the state.  U.S. S. Ct Reversed and Remanded.

Rule(s): 14^th

Rationale:   Generally a state law which discriminates on the basis of alienage can only withstand attack if its satisfies judicial inquiry under Strict Scrutiny.  A narrow exception to the rule that discrimination based on alienage triggers Strict Scrutiny is the Public Function.  This exception does not apply to the law at issue here b/c it fails the Cabell test: 1^st the specificity of the classification is examined and if that classification Subt’lly overincludes or underincludes members, then it will undercut the Govt’s claim it serves a legit political end; 2^nd if the classification is sufficiently tailored, it applies only to ‘persons holding state elective or important non-elective’ govt’l positions whose officers ‘participate directly in the formulation, execution, or review of broad public policy’ and thus performs ‘functions to go right to the heart of representative govt.’

This law is not overinclusive b/c it applies narrowly to only one category-those who want to become notaries.  It is unclear if it is underinclusive b/c Tx does not require court reporter (who perform same tasks), or Sec of State to be US citizens.  However that issue is moot b/c the law fails the second prong of the test-heart o’ govt.  Notary duties hardly implicate important responsibilities to got to the heart o’ Govt, most are clerical and ministerial.  Thus, this statute must face strict scrutiny, and it must further a compelling St Int by the least restrictive means practically available. 

Nothing indicates that aliens are incapable of familiarizing themselves w/ state law that would justify an absolute and class-wide exclusion.  If this were truly a C St Int the state would employ an actual test to measure familiarity with state law, institutions, and its operations. No test.

Availability for future testimony fails b/c the State failed to show that notaries’ testimony presents a real, and not a speculative, problem.

Df’s A: (TX) 1) Notaries public fall w/i the category of officials who perform functions that “go to the heart of representative govt” b/c notaries are designated as such under Tx Constitution. The state views notaries as important officials occupying positions central to the state’s definition as a political community.  2) Even if the actual function is the touchstone of a proper analysis, Tx can classify and exclude aliens from notary positions b/c notaries entail the performance of functions sufficiently “political” by consequence. 3) Notaries must be familiar w/ state law and institutions, and be available years later to potentially testify.

PUBLIC FUNCTION:    Only certain positions: Teachers, Police, or Probation Officers have been accepted as recognized positions. Lawyers and Notaries have been excluded from the list.  Position must be “clothed in authority to exercise an almost infinite variety of discretionary powers related to sensitive areas of life; a high degree of responsibility and discretion in the fulfillment of a basic Govt obligation; in the routine exercise of discretionary power, involving basic Govt function, the position directs authority over other individuals.

Rationale:   States are free to establish their own form of Govt and limit the right to govern to those who are full-fledged members of the political community.