Can a Maine deputy sheriff or other law enforcement officer also serve as a notary public, given the constitutional rule against one person exercising powers of more than one branch of government?

Plain-English summary

Secretary of State G. William Diamond relayed a question from Deputy Secretary Gary Cooper to AG James E. Tierney: could a law enforcement officer also serve as a notary public, or did Maine's separation-of-persons clause forbid it? Tierney walked through 160 years of Maine law to answer yes, the two offices were compatible under the law as restructured in 1988.

The starting point was Me. Const. art. III, § 2, which provides that no person belonging to one of the three branches of government "shall exercise any of the powers properly belonging to either of the others." In 1825, the Justices of the Maine Supreme Judicial Court advised the Senate that a sheriff or deputy sheriff (executive) could not serve as a justice of the peace (judicial) because the same person would then exercise both executive and judicial powers. Opinion of the Justices, 3 Me. 484, 485-86 (1825). That holding was applied later in Pooler v. Reed, 73 Me. 129 (1882) (municipal constable could not also be justice of the peace) and Stubbs v. Lee, 64 Me. 195 (1874) (deputy sheriff could not be trial justice).

The notary-public question arose in a 1936 opinion from Deputy AG Sanford Fogg, who concluded that the office of notary public was incompatible with the office of deputy sheriff because "Notaries Public can do all the things that a Justice of the Peace can do." Fogg was right about the statutory landscape of his day: in 1905, the Legislature had enacted P.L. 1905, ch. 58 (codified at R.S. ch. 97, § 38 (1930)), providing that a notary public "may do all things that justices of the peace are or may be authorized to do and shall have the same territorial jurisdiction." Eight more AG opinions over four decades reaffirmed Fogg's reasoning.

What changed: in 1975, Me. Const. amend. CXXIX eliminated the notary public as a constitutional office. In 1981, P.L. 1981, ch. 456 abolished the office of justice of the peace altogether and merged its functions into the notary public. Then in 1988, P.L. 1988, ch. 736 reversed course, reviving the office of justice of the peace to take on the judicial functions previously performed by a "Complaint Justice," and explicitly separating the two offices. The Statement of Fact to L.D. 2452 (113th Legis. 1988) put it plainly: the 1988 act "reassign[ed] all judicial functions which were assigned in 1981 to the office of notary public to the new office of justice of the peace," restoring "the office of notary public to its historic function of taking oaths required by law and issuing subpoenas."

Tierney then applied the separation-of-persons clause to the post-1988 notary. He drew on the 1890 Massachusetts opinion by Justice Oliver Wendell Holmes Jr. (Opinion of the Justices, 23 N.E. 850 (Mass. 1890)), which described the historical notary as performing "essentially clerical and ministerial" duties, not judicial ones. He also cited Bernal v. Fainter, 467 U.S. 216, 225-26 (1984), where the U.S. Supreme Court described notarial duties as "essentially clerical and ministerial." The text of the original Maine Constitution itself supported this reading: art. V, pt. 1, § 8 had listed notaries public separately from judicial officers, implying that notaries were not judicial officers in the framers' understanding. With judicial functions surgically removed in 1988, the notary office no longer triggered the constitutional separation-of-persons concern. Nor did it trigger the common-law doctrine of "incompatible offices" articulated in Howard v. Harrington, 114 Me. 443 (1916), since the notary's ministerial functions presented no conflict with law enforcement's discretionary functions. Tierney noted, as a policy aside, that a law enforcement officer might be "well-advised" not to administer oaths to persons against whom he was enforcing the criminal laws, but cautioned that such action would not be illegal.

Currency note

This opinion was issued in 1989. 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

What does Maine's "separation of persons" clause forbid?

Article III, Section 2 of the Maine Constitution prohibits a person belonging to one of the three branches of government (legislative, executive, judicial) from exercising any of the powers properly belonging to another, except where the constitution itself expressly permits. Maine's version is unusually strict; many other states have a "separation of powers" clause that addresses institutional design but not individual dual office-holding.

Why did notaries used to be barred from law enforcement work?

Between 1905 and 1981, Maine law granted notaries the full powers of justices of the peace. Because justices of the peace were judicial officers, a notary was effectively exercising judicial functions. The separation-of-persons clause meant a law enforcement officer (executive branch) could not also be a notary (de facto judicial). The 1988 disentanglement reversed that, leaving the notary with only ministerial duties.

What is the "common law doctrine of incompatibility of offices"?

It is a non-constitutional rule that two offices cannot be held by the same person if the duties of one are inherently incompatible with the duties of the other. Howard v. Harrington (1916) is the Maine reference point. The incompatibility might arise from conflicting loyalties, conflict of interest, or because one office's holder must supervise or review the other's actions. Tierney concluded the post-1988 notary's purely ministerial duties did not present an incompatibility with the discretionary duties of a law enforcement officer.

Did Tierney recommend any practical limits?

Yes, as policy guidance rather than legal command. He suggested a law enforcement officer might want to refrain from administering oaths to persons he was actively investigating or charging, to avoid the appearance of impropriety. But he stressed that doing so would not be illegal.

Did the U.S. Supreme Court's Bernal v. Fainter decision matter here?

Bernal struck down a Texas requirement that notaries be U.S. citizens. In doing so, the Court described notarial duties as "essentially clerical and ministerial" and emphasized that notaries are not "invested either with policy making responsibility or broad discretion in the execution of public policy." Tierney cited that characterization to support his conclusion that the post-1988 Maine notary was not a judicial officer.

Background and statutory framework

Maine's notary public office sits at an unusual junction of constitutional design and statutory drift. The original Maine Constitution placed notaries among gubernatorial appointees but listed them separately from judicial officers. Between 1905 and 1981, statutory drift gave notaries judicial-style powers, which mattered for the separation-of-persons clause. The 1981 abolition of the justice-of-the-peace office and 1988 revival reversed course twice, eventually leaving the notary as a ministerial officer in line with the historical understanding. This opinion serves as the formal Department of the Attorney General notice that the earlier line of cases barring dual notary/law-enforcement service no longer applies, because the statutory premise of those cases (notaries-as-judicial-officers) no longer holds. Existing law enforcement officers who had been turned away from notary commissions under the older opinions could, after September 27, 1989, apply for commissions on equal footing with other Maine residents.

Citations

• Me. Const. art. III, § 2 (separation of persons)
• Me. Const. amend. CXXIX (1975) (eliminated notary public as constitutional office, effective Jan. 4, 1977)
• Me. Const. art. V, pt. 1, § 8 (amended 1975) (gubernatorial appointment listing notaries separately from judicial officers)
• Me. Const. art. VI, § 4 (original) (justices of the peace as judicial officers)
• P.L. 1905, ch. 58 (notary may exercise justice-of-the-peace functions; later codified at R.S. ch. 97, § 38 (1930))
• P.L. 1981, ch. 456 (abolished office of justice of the peace; merged into notary public)
• P.L. 1988, ch. 736 (revived office of justice of the peace; separated functions from notary public)
• L.D. 2452, Statement of Fact (113th Legis. 1988)
• Opinion of the Justices, 3 Me. 484, 485-86 (1825) (sheriff or deputy sheriff cannot also serve as justice of the peace)
• Stubbs v. Lee, 64 Me. 195 (1874) (deputy sheriff may not be trial justice)
• Pooler v. Reed, 73 Me. 129 (1882) (municipal constable may not be justice of the peace)
• Howard v. Harrington, 114 Me. 443 (1916) (common-law doctrine of incompatibility of offices)
• Opinion of the Justices, 23 N.E. 850 (Mass. 1890) (Holmes, J., concurring) (notary public is not a judicial officer)
• Bernal v. Fainter, 467 U.S. 216 (1984) (notarial duties are essentially clerical and ministerial)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890927.pdf

Original opinion text

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

89-14

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

September 27, 1989

G. William Diamond
Secretary of State
State House Station #29
Augusta, ME 04333

Dear Secretary of State Diamond:

I am writing in response to an inquiry from Deputy Secretary of State Gary Cooper concerning whether it is unconstitutional or illegal for a law enforcement officer to hold the office of notary public. For the reasons which follow, it is the opinion of this Department that, while the holding of both of these offices simultaneously was for some time in Maine's history unconstitutional, in view of the current limited powers of the office of notary public, there is no constitutional or other impediment to their being held simultaneously today.

The source of the constitutional problem which your question presents is the so-called "separation of persons" provision of the Maine Constitution, Article III, Section 2, which provides:

No person or persons, belonging to one of [the legislative, executive, and judicial] departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.

In the early days of Maine's history as an independent state, this provision was the subject of an Opinion of the Justices of the Supreme Judicial Court, written in response to a request from the Maine Senate as to whether it was possible for a sheriff or deputy sheriff (as well as a coroner) to serve as a justice of the peace. In that Opinion, the justices analyzed the functions of these officers and determined that since sheriffs and deputy sheriffs were charged with assisting the executive branch in the execution of the laws, and that justices of the peace were included within the category of judicial officers by Article VI, Section 4 of the original Maine Constitution, the same person could not occupy both positions, since in doing so he would necessarily be exercising executive and judicial powers simultaneously. Opinion of the Justices, 3 Me. 484, 485-86 (1825). Accord Pooler v. Reed, 73 Me. 129 (1882) (municipal constable may not be justice of the peace); Stubbs v. Lee, 64 Me. 195 (1874) (deputy sheriff may not be trial justice).

It appears, however, that the question of whether a law enforcement officer could be a notary public was not addressed until an Opinion of the Attorney General issued on December 14, 1936. In that document, Deputy Attorney General Sanford L. Fogg advised the Treasurer of the Town of Union:

I regret to have to inform you that in our statutes it is provided that Notaries Public can do all the things that a Justice of the Peace can do, consequently it is my opinion that the office of Notary Public would likely be held to be incompatible with the office of Deputy Sheriff.

The basis for Deputy Attorney General Fogg's statement that notaries and justices of the peace perform the same functions was the fact that during the nineteenth century, the Legislature slowly vested the office of notary public with various functions historically performed by a justice of the peace, culminating with the enactment, in 1905, of a provision that a notary public "may do all things that justices of the peace are or may be authorized to do and shall have the same territorial jurisdiction." P.L. 1905, ch. 58, appearing at the time of Deputy Attorney General Fogg's opinion at R.S. ch. 97, § 38 (1930). This opinion served as the basis for at least eight more Opinions of the Attorney General, all declaring that a person could not hold the office of notary public or justice of the peace on the one hand and be a law enforcement officer on the other.

These opinions, which were clearly correct at the time that they were issued, would appear to end the matter, were it not for the fact that the Legislature, in the last decade, has seen fit to separate the functions of justice of the peace and notary public, and to restore the latter office to its historic, non-judicial function. This process began with a constitutional amendment in 1975 which eliminated the office of notary public as a constitutional office. Me. Const. amend. CXXIX, effective January 4, 1977. It then continued in 1981, when the Legislature abolished the office of justice of the peace and merged its functions with those of the notary public. P.L. 1981, ch. 456, enacting amendments to various sections of the Maine Code. In 1988, however, the Legislature revived the office of justice of the peace in order to assign to it judicial functions formerly discharged by an officer known as a "Complaint Justice." P.L. 1988, ch. 736. At the same time, the Legislature established a clear separation between the functions of the newly-established justice of the peace and those of the notary public. In the words of the Statement of Fact of the bill resulting in this separation, the Legislature sought to accomplish this objective "by reassigning all judicial functions which were assigned in 1981 to the office of notary public to the new office of justice of the peace . . . ." L.D. 2452, Statement of Fact (113th Legis. 1988). Thus, "the office of notary public is restored to its historic function of taking oaths required by law and issuing subpoenas . . . ." Id.

The question thus presented is whether this newly-constituted office of notary public exercises judicial powers within the meaning of the "separation of persons" clause of the Maine Constitution. In the opinion of this Department, it does not. First of all, at the time of the entry into force of the Maine Constitution, it is clear that notaries public were not regarded as judicial officers. In an opinion issued in 1890 on the question of whether a woman could be appointed to the office of notary public, the Justices of the Supreme Judicial Court of Massachusetts, from which Maine separated in 1820, outlined the history of the office and observed that, while the office of notary did exercise important judicial functions in civil law jurisdictions, "None of the acts which a notary public in this commonwealth is authorized, either by custom or by statutes, to perform, is a judicial act," and that although "[n]otaries public are to be appointed in the same manner as judicial officers are appointed, . . . they are not judicial officers." Opinion of the Justices, 23 N.E. 850, 852 (Mass. 1890) (Holmes, J., concurring). This view was reflected in the text of the original Maine Constitution which provided that the Governor "shall nominate, and, with the advice and consent of the Council, appoint all judicial officers, the Attorney General, the Sheriffs, Coroners, the Registers of Probate, and Notaries Public." Me. Const. art. V, pt. 1, § 8 (amended 1975). By listing notaries public separately from judicial officers, the framers of the Maine Constitution manifested their understanding that notaries did not perform judicial functions.

This view of the traditional function of a notary continues today. In a recent decision concerning whether the requirement that a notary be a citizen of the United States is constitutional, the United States Supreme Court described the officer's duties as "essentially clerical and ministerial," and stated that notaries are not "invested either with policy making responsibility or broad discretion in the execution of public policy that requires routine exercise of authority over individuals." Bernal v. Fainter, 467 U.S. 216, 225, 226 (1984). Of course, there is nothing to prevent the Maine Legislature from turning the office of notary public into a judicial one, as it did, at least between 1905 and 1981, by assigning various judicial functions to it. With the re-establishment of the independent office of justice of the peace in 1988, however, it appears clear that the current office fits within the descriptions of the traditional notary public set forth above. Thus, it may safely be concluded that under the current state of Maine law, the notary public is not a judicial officer.

Before concluding that there is no constitutional or other impediment to a person occupying the offices of law enforcement officer and notary public, however, it is necessary to dispose of one other possible difficulty. In addition to the constitutional prohibition against persons simultaneously discharging executive and judicial functions generally, there exists also the common law doctrine of "incompatibility" of offices, under which it is possible that a person may not occupy two offices if the discharge of one is found to be incompatible with the discharge of another. Howard v. Harrington, 114 Me. 443 (1916). As indicated above, there is no judicial authority in Maine with regard to whether the office of notary public in its original form was incompatible with that of a law enforcement officer; and, although several of the opinions of this office cited above relied on the doctrine of incompatibility in determining that the two offices were incompatible, those opinions were issued at a time when the notary public did discharge judicial functions and thus may well have been incompatible with law enforcement. Consequently, there is no authority in the jurisdiction precisely on point.

Nonetheless, it is clear to this Department that, so long as the notary public does not exercise judicial functions, the exercise of this office is not incompatible with law enforcement. As indicated above, the functions of the notary today essentially involve the taking of oaths and issuance of subpoenas, both ministerial acts. Thus, although a law enforcement officer enjoys considerable discretion in the performance of his duties, there can be no conflict with the exercise of that discretion should he be a notary, since the nature of that office is entirely non-discretionary. While it may be that such an officer would be well-advised for policy reasons not to administer oaths to persons against whom he is enforcing the criminal laws, such an action cannot be said to be illegal. Consequently, the discharge of the two offices by the same person does not present an incompatibility problem, and they may therefore be held simultaneously.

I hope this answers your question. If not, please feel free to re-inquire.

JAMES E. TIERNEY
Attorney General

JET:SW