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SJC-12769, Kevin Richardson second,
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V, The UPS Store, Inc. and another.
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Okay, now I invite Mr. Brown
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on behalf of Kevin Richardson to speak.
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Justices of the Massachusets Supreme Court.
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MGL, chapter 262, regulating the fees
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of certain officers is
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and has always been a consumer protection statute,
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implementing the unambiguous directive
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of the Massachusets Constitution,
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prohibiting the use of public offices for private profit.
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To this end, the legislature is always strictly limited
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the fees that public officers can charge
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in the execution of their public duties.
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And as those duties have evolved over time,
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the legislature, the executive branch
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and the courts have all unambiguously applied fee
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limitations to every official act by a public officer.
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And have no instance countenance the use
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of public office for profiteering
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in the manner advanced by defendants today.
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For the defendants to be right in the novel interpretation
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of chapter 262, everyone else who has looked
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at the statute from the legislature,
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to the executive branch, through the courts
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thus far has to be wrong.
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That noting notatrial attestation,
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noting the witnessing of an event,
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is only applicable to the protest of commercial paper
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is an idea positive for the first time as a theory in
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this case, and not supported
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by any authority, secondary or otherwise.
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The legislature's 2016 amendments
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to chapter 222 directly recodify fee limitations
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and an act entitled,
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an act regulating notary public to protect consumers.
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And in doing so ratified both
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the prevailing section 41 prohibition against charging more
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than $1.25 for any notarization,
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and the governance power to enforce the notary fee limit
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at the prescribed $1.25.
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Every court to touch on this subject
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thus far has recognize both the power of the governor
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to regulate notary's
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and explicit fee limitations set by section 41.
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The Superior Court has aptly stated,
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it is contrary to Massachusetts law and public policy
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for a private entity to aggregate the services
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of notaries public, or any public officials who exist
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to provide a public good and
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to sell those services as a commercial good.
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In this context, section 41 can be plainly
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and unambiguously read.
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The whole cost of noting including
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the cost of notices and recording shall
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in no case exceed $1.25.
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No case means simply, in no case.
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And not nearly in no case involving a protest.
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Defendants requested interpretation is a strange one,
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and requires the artificial insertion of words
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that do not exist in the statute,
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and an inexplicable assertion of legislative intention
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to allow the use of public office for private profiteering.
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If the plain meaning of Section 41 is not clear enough
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for defendants, the statute sets
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a further express free limitation through Section 43,
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which limits notary fees to those fees set
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for Justices of the peace for like services.
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Fees for acknowledgments of deeds is set at 25 cents.
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And the legislature has clearly equated the acknowledgement
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of deed, with the acknowledgement of other instruments.
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(hammer pounds)
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I invite questions, your honor.
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Thank you Justice Lenk.
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Yes, I was wondering what you thought of the amicus brief.
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I thought it was extremely well done.
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And it set out the history quite accurately.
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That the fees of this of public offices
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have always been limited,
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and that's always been the intent of the statute.
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And no instances of this as the Commonwealth ever intended
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to allow public officials to charge whatever
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they want for their public services.
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That would be to the extreme detriment
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of the public that they serve.
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In other word you adopted the historical analysis
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of the amicus brief.
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Absolutely do.
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Alright, thank you.
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Yes, Gaziano.
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Just a question about
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the executive order by Governor Romney.
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I think, so to speak died on the vine.
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And there was a reference in the brief into chapter 289
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of the Act 2016 that rescinded it.
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I take it that that rescinded the executive order,
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and there was no further legislative pronouncement
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on this issue.
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Well, the legislature,
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they rescinded the order
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because they explicitly gave the governor
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the statutory authority
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to recognize his statutory authority.
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To regulate and set fees for notary public.
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That's in, I believe, Section 16 of Chapter 222.
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Okay, that was the only question I have.
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Thank you very much.
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Justice, Lowy.
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Yes, thank you.
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Mr. Brown, you're not gonna be surprised
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with my questions, which involves statutory analysis.
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Section 41 at the beginning
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of the statute it lists the events of notarizing.
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That the fee applies to, and includes the cost of protests,
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the cost of noting, recording and notices.
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And then you go to Chapter 222, Section One,
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which defines the act for notary,
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and refers to all acts of a notary public,
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including presumably, witnessing signature.
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So why isn't the analysis correct
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that witnessing a signature would fall
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within the definition
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for notary public under 222, Section One.
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And section 41 is limited to the list protests cost
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of noting, for example.
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Because the word in no case.
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If the legislature wanted to, noting
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in both sides admit that noting
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is merely an act attestation,
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it's the witnessing of an event.
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And the notary makes his minute that he's witnessed an event
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and it becomes a an official witness
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of an event that has import in the courts.
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So the legislature could have easily said,
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in no act of protest, in no case of protest,
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shall the cost of noting be greater that $1.25.
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That's not what it says.
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It says, in no case.
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That is referring back to the beginning of the statute.
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After as follows this universal events
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to which presumably applies.
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I'm not sure I understand the question yet.
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Well, for the protest fulfill is exchange,
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order, draft, or check the non acceptance,
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non payment or promissory note.
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I won't keep on going,
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but it list all the events to which Section 41 applies.
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And there's more to act as a notary public
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than is listed there.
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And you have the definition of that in Chapter 222.
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So the question is whether or not that last phrase,
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in no case is referring to the list
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of events Section 41?
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Now, I guess the answer that is no.
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That in no case, means in no case
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that involves an attestation.
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And I think it's fair to say, no case simply means no case.
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And all the world has interpreted,
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in no case that noting as to apply
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to all acts of attestations.
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From the governor, to the legislature when they ratified it.
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And you can see that when they exempted absentee ballots
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from the limitation set forth in Chapter 41.
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Which the defendants only explained away
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as having the legend the legislature must
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have misunderstood their own statute.
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So it doesn't make any sense from the history
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of the statute, and the way the legislature has treated
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it in the way that governor is treated it,
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and the way the courts are treated it.
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And even in the WIBA, the case that I cited,
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I quoted does Justice McCloud.
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The entire Real Estate Bar Association stipulated,
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which is the most prodigious accumulation of notaries.
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They all accepted that that limitation
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on noting applied to all attestations.
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And Justice, even if you don't get there through
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that definition of noting, when you go to Section 43
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for like for services,
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acknowledging the deeds and other instruments,
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that's limited to 25 cents.
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Okay, thank you.
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Ms. Budd.
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Hi, good morning.
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Let me ask you about your reading the word noting as
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all acts of a notary public.
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Can you tell me what that is based on?
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It's based on the commonly accepted interpretation.
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That's evidenced by the legislature
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and the governor in the courts so far.
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And it also the plain dictionary meaning of noting,
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to make a note.
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And also from the case law that both the defendants
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and I have cited to, that noting is an attestation.
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Noting a protest is completely different from noting.
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Noting is merely the official witnessing--
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Sorry, just a second.
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'Cause what I'm trying to do is figure out I mean,
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just trying to figure out this section here.
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And it does talk about noting earlier
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on in the section right, it says,
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"For noting the non acceptance
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"or non payment of a bill of exchange."
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And it goes back to, that's referring back
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to protesting negotiable instruments, right?
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Am I right about--
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Yes, yeah, yeah.
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The first section talks about recording notices,
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and actually drawing up the protest
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and all the fee limitations.
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So it's for commercial paper worth, more than $500,
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you have a limitation on actually drawing the document
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that says, "Hey, we we protest
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"this dishonor, and that's $1."
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And then--
Right, and so I'm focusing
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on the portion of the section that talks
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about noting the non acceptance,
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or non payment of a negotiable instrument.
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And that has a particular meaning.
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Is that correct?
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Yes, well note, yes noting that particular document
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is specifically limited, you can see
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it's specifically limited to I believe, 75 cents.
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Yes, and then so I'm trying to figure
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out why we should assume that
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when noting is mentioned again,
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further down in the same section,
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why we should assume that they're they're talking
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about any type of notarization?
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When the first time they mentioned it
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they're talking about a particular type of noting,
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or noting is used sort of as a term of act.
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Why shouldn't assume that it's been used
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as a term of art the second part?
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Because of the words in no case.
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So in no case has been taken by the courts so far,
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and by the legislature in the governance,
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the executive branch,
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to mean applying to every case where
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there is a noting of a document of any kind.
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So any type, that has been fairly interpreted
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as being replying to the attestation
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of any type of document.
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And there's nothing to indicate to the contrary,
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and there's a tremendous wealth of historical evidence
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to support that interpretation.
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And know--
Please show me,
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because I understand that it's supposed
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to be a consumer statute,
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and you're supposed to make sure
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that you're regulating the amount charged,
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but I'm just trying to figure out exactly
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why we should say that noting
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in this section it engulfs everything.
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And I understand that other other entities
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have interpreted it that way,
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but can you point to anywhere where the SJC has?
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No, well this is the first time up to the SJC.
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And I've already listed the lower court cases.
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Well, there was one instance where Justice Leah Coss
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had a dissenting opinion in the Queen case,
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he referred to the fees being limited by section 41--
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But that wasn't the issue in that case, was it?
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It was not, but it Just goes to show,
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I mean, it's certainly clear evidence
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that the bulk of the world, including Justices
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in the Supreme Court, interpreted
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that noting as meaning exactly
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what we are saying that it means.
270
00:14:15.840 --> 00:14:19.630
In that instance, really this discussion is what,
271
00:14:19.630 --> 00:14:21.080
were trying to define the intent
272
00:14:21.080 --> 00:14:25.220
of the legislature when they pass this statute.
273
00:14:25.220 --> 00:14:27.420
And the only way to define it is really
274
00:14:27.420 --> 00:14:30.070
to look at what was commonly accepted,
275
00:14:30.070 --> 00:14:32.277
the meaning of that word was commonly given.
276
00:14:32.277 --> 00:14:34.890
And all you can look as to the general population,
277
00:14:34.890 --> 00:14:38.040
the courts, the governor's office,
278
00:14:38.040 --> 00:14:39.910
in the legislature itself.
279
00:14:39.910 --> 00:14:40.880
And of course, there's always
280
00:14:40.880 --> 00:14:43.450
the plain dictionary meaning of noting.
281
00:14:43.450 --> 00:14:45.840
Well, I guess I'm wondering whether
282
00:14:45.840 --> 00:14:50.840
there is not a difference between noting
283
00:14:52.160 --> 00:14:54.470
and the term Notarial Act,
284
00:14:54.470 --> 00:14:56.450
which I know is is used elsewhere
285
00:14:56.450 --> 00:15:01.260
in the statutes as what you want noting to mean.
286
00:15:01.260 --> 00:15:03.750
Well notarial act is broader than noting.
287
00:15:03.750 --> 00:15:06.840
Oh okay, tell me tell me about the difference.
288
00:15:06.840 --> 00:15:11.220
Well for example, notaries can draw up a protest.
289
00:15:11.220 --> 00:15:15.170
Now a protest, that's a notarial act.
290
00:15:15.170 --> 00:15:18.211
But that's not that's different from noting, in that--
291
00:15:18.211 --> 00:15:20.580
And noting (crosstalk).
292
00:15:20.580 --> 00:15:21.570
I'm sorry, Your Honor.
293
00:15:21.570 --> 00:15:25.710
That you said earlier that noting is just making a mark.
294
00:15:25.710 --> 00:15:27.713
Noting is the attestation,
295
00:15:28.580 --> 00:15:31.120
that is the official attestation
296
00:15:31.120 --> 00:15:33.340
of the notary where he says,
297
00:15:33.340 --> 00:15:37.760
this is what happened on this day, and I so declare it.
298
00:15:37.760 --> 00:15:40.950
And signs his signature, and puts the date it happened.
299
00:15:40.950 --> 00:15:43.870
That gives his official witness imprimatur,
300
00:15:43.870 --> 00:15:46.100
that that event actually happened.
301
00:15:46.100 --> 00:15:49.240
But, for example, the protest is a large document
302
00:15:49.240 --> 00:15:51.546
where it explains that, here is the there was this note,
303
00:15:51.546 --> 00:15:54.750
it was presented to the debtor,
304
00:15:54.750 --> 00:15:57.150
the debtor dishonored it, and the holder
305
00:15:57.150 --> 00:15:59.320
of the note protests that dishonor.
306
00:15:59.320 --> 00:16:02.850
And that's all written, and it also informs all the parties
307
00:16:02.850 --> 00:16:04.590
that they're going to be held liable in the loan.
308
00:16:04.590 --> 00:16:06.800
And that had important significance for proceeding
309
00:16:06.800 --> 00:16:09.800
with a case to enforce that note back in those days.
310
00:16:09.800 --> 00:16:13.440
So that is a different type of document.
311
00:16:13.440 --> 00:16:16.904
So, notaries do more than just attestation.
312
00:16:16.904 --> 00:16:18.257
Okay, thank you.
313
00:16:25.895 --> 00:16:27.283
No, no, no.
314
00:16:28.210 --> 00:16:29.267
Justice Cypher.
315
00:16:34.377 --> 00:16:36.750
I just also want to say that I found
316
00:16:36.750 --> 00:16:38.370
that both brief very interesting,
317
00:16:38.370 --> 00:16:41.820
and who would think that this would be so fascinating.
318
00:16:41.820 --> 00:16:45.140
Also, that you actually answered one
319
00:16:45.140 --> 00:16:48.470
of my questions already, when you answered Judge Budd.
320
00:16:48.470 --> 00:16:51.170
I just wanna make sure I've got it right.
321
00:16:51.170 --> 00:16:53.550
You're saying that if we adopt your approach,
322
00:16:53.550 --> 00:16:55.410
we'll be consistent with the majority
323
00:16:55.410 --> 00:16:57.160
of the other state, both (mumbles).
324
00:16:59.820 --> 00:17:00.920
Consistent with the,
325
00:17:04.310 --> 00:17:06.950
well, when you say my approach,
326
00:17:06.950 --> 00:17:08.740
I'm not sure what you're referring to Justice,
327
00:17:08.740 --> 00:17:09.780
if mean that--
328
00:17:09.780 --> 00:17:12.103
No, I mean your definition of noting.
329
00:17:14.860 --> 00:17:18.200
I don't know, I haven't examined every
330
00:17:18.200 --> 00:17:21.030
other state definition,
331
00:17:21.030 --> 00:17:23.470
but I think it was commonly accepted in the case.
332
00:17:23.470 --> 00:17:26.780
The ancient cases cited by both sides
333
00:17:26.780 --> 00:17:29.210
that described noting as an attestation
334
00:17:29.210 --> 00:17:31.853
or witnessing of event, that's accurate.
335
00:17:32.890 --> 00:17:35.490
And we say one of those is the supreme court case?
336
00:17:37.790 --> 00:17:40.380
I believe it was a New York case, Allen,
337
00:17:40.380 --> 00:17:43.740
I'm not sure, Allen was a New York Supreme Court case.
338
00:17:43.740 --> 00:17:46.500
I think we both, they decided to it,
339
00:17:46.500 --> 00:17:50.650
and it has a description of what noting
340
00:17:50.650 --> 00:17:54.029
is as being the attestation of the notice.
341
00:17:54.029 --> 00:17:59.029
Okay, there's no United States Supreme Court case?
342
00:18:00.203 --> 00:18:01.867
I don't think so, yes.
343
00:18:01.867 --> 00:18:02.700
Okay, thank you.
344
00:18:03.930 --> 00:18:04.967
Justice Kafker.
345
00:18:06.200 --> 00:18:09.123
So I got a series of questions about,
346
00:18:10.130 --> 00:18:13.040
so let me start with the subtle expectations.
347
00:18:13.040 --> 00:18:14.830
I have a vague recollection that
348
00:18:14.830 --> 00:18:18.230
when Governor Romney announced this executive order,
349
00:18:18.230 --> 00:18:21.140
there was a giant howling out there.
350
00:18:21.140 --> 00:18:25.320
Was there a change when he did this?
351
00:18:25.320 --> 00:18:28.340
I read your brief it sounds like it was settled
352
00:18:28.340 --> 00:18:31.540
that Romney was just doing what had been done in the past.
353
00:18:31.540 --> 00:18:34.430
But I remember a real reacting to this.
354
00:18:34.430 --> 00:18:35.310
Is that correct?
355
00:18:35.310 --> 00:18:36.553
Am I misremembering?
356
00:18:38.786 --> 00:18:41.710
I don't remember a real reaction.
357
00:18:41.710 --> 00:18:44.077
I mean, as far as I know,
358
00:18:47.910 --> 00:18:49.400
in the practice,
359
00:18:49.400 --> 00:18:51.760
of everything that has been looked at in the practice
360
00:18:51.760 --> 00:18:53.280
of the real estate fire,
361
00:18:53.280 --> 00:18:55.300
to the practice of all notaries generally,
362
00:18:55.300 --> 00:18:59.170
they have accepted the limitation of $1.25
363
00:18:59.170 --> 00:19:00.820
as being the limitation expected.
364
00:19:02.517 --> 00:19:04.610
Before Romney's executive order,
365
00:19:04.610 --> 00:19:07.550
was that whatever he was charging out there,
366
00:19:07.550 --> 00:19:10.670
I believe so, yes--
Or was that--
367
00:19:10.670 --> 00:19:13.790
I can only speak from my personal experience as a notary.
368
00:19:13.790 --> 00:19:16.020
And that has always been my experience as a notary,
369
00:19:16.020 --> 00:19:18.230
that the limitations of $1.25.
370
00:19:18.230 --> 00:19:21.230
It's been around, since I've been practicing law.
371
00:19:21.230 --> 00:19:23.250
That's been the accepted limitation,
372
00:19:23.250 --> 00:19:26.803
but it wasn't invented out of whole cloth.
373
00:19:29.005 --> 00:19:30.720
I remind the Justices that every notary,
374
00:19:30.720 --> 00:19:33.010
to become a notary, takes an oath.
375
00:19:33.010 --> 00:19:36.343
And for the period described in my complaint,
376
00:19:37.560 --> 00:19:40.750
all the notaries had to take an oath, to sign an oath,
377
00:19:40.750 --> 00:19:43.080
that they would not charge more than
378
00:19:43.080 --> 00:19:46.509
that fee limitation, and that they would they abide by--
379
00:19:46.509 --> 00:19:48.030
They take an oath saying,
380
00:19:48.030 --> 00:19:52.620
they say they take an oath that they shall not charge
381
00:19:52.620 --> 00:19:56.100
for any of their services more than what's in Section 41?
382
00:19:56.100 --> 00:20:00.513
Or that they shall comply with their statutory requirements?
383
00:20:02.110 --> 00:20:04.340
Both Your Honor, because they,
384
00:20:04.340 --> 00:20:05.800
during the period my complaint,
385
00:20:05.800 --> 00:20:07.170
they took an oath to abide
386
00:20:07.170 --> 00:20:10.330
by the governor's order specifically.
387
00:20:10.330 --> 00:20:12.960
Which sets forth that you can't charge more
388
00:20:12.960 --> 00:20:16.613
than the fee limit set in Section 41.
389
00:20:17.846 --> 00:20:22.846
And that's an exhibit to (mumbles), to be a reply brief.
390
00:20:25.100 --> 00:20:27.990
And so we've got notarial act or protesters.
391
00:20:27.990 --> 00:20:30.933
there are other notarial acts besides protesting?
392
00:20:32.870 --> 00:20:36.970
There are many, protesting is one notarial act.
393
00:20:36.970 --> 00:20:38.283
There's acknowledgments.
394
00:20:39.300 --> 00:20:44.300
It's really does involve all acknowledgments.
395
00:20:44.667 --> 00:20:49.180
I mean these terms in practice, really refer
396
00:20:49.180 --> 00:20:53.910
to the active, always kind of refer to the act
397
00:20:53.910 --> 00:20:58.460
of a notary providing an official witnessing of an event.
398
00:20:58.460 --> 00:21:02.040
That's chiefly what the notary does.
399
00:21:02.040 --> 00:21:04.407
so you can go before a notary--
400
00:21:05.670 --> 00:21:06.610
I'm confused though.
401
00:21:06.610 --> 00:21:09.140
So is there a third category of things they do,
402
00:21:09.140 --> 00:21:11.990
acknowledgments that are separate from noting
403
00:21:11.990 --> 00:21:13.470
and protesting or
404
00:21:13.470 --> 00:21:16.517
is acknowledgement the same thing as noting?
405
00:21:18.780 --> 00:21:23.550
Well, you see the words attestation and acknowledgement,
406
00:21:23.550 --> 00:21:27.500
they're all used relatively interchangeably,
407
00:21:27.500 --> 00:21:31.690
because they're all fundamentally the same thing.
408
00:21:31.690 --> 00:21:34.730
Then came before me, so and so, and did this,
409
00:21:34.730 --> 00:21:37.480
on this date and time, and I witnessed it.
410
00:21:37.480 --> 00:21:38.790
And that's what a notary does.
411
00:21:38.790 --> 00:21:40.960
And the notary is an official witness
412
00:21:40.960 --> 00:21:45.370
that's given special credibility in the courts.
413
00:21:45.370 --> 00:21:46.630
So that every,
414
00:21:46.630 --> 00:21:48.250
I just wanna make sure.
415
00:21:48.250 --> 00:21:50.690
You say all noting, which I take it
416
00:21:50.690 --> 00:21:52.590
to me in all acknowledgments,
417
00:21:52.590 --> 00:21:57.590
everything but protests are $1.25, and protests are $2.
418
00:21:58.800 --> 00:22:02.622
That set out in a different (mumbles) I take, right?
419
00:22:02.622 --> 00:22:05.720
Yes, well, protests in,
420
00:22:05.720 --> 00:22:10.220
well they present the limit for all of the aspects
421
00:22:10.220 --> 00:22:12.800
of protest, including the noting at $2
422
00:22:12.800 --> 00:22:15.450
if the commercial paper was more than 500,
423
00:22:15.450 --> 00:22:18.030
and I think at $1.50 if the commercial paper
424
00:22:18.030 --> 00:22:21.076
is worth less than 500.
425
00:22:21.076 --> 00:22:21.909
So there is--
Do you know
426
00:22:21.909 --> 00:22:22.760
which statute is that in?
427
00:22:22.760 --> 00:22:25.723
Where does the protest dollar amount will appear?
428
00:22:27.410 --> 00:22:29.010
That's in Section 41.
429
00:22:29.010 --> 00:22:32.550
The first part, up until we get to the part in no case,
430
00:22:32.550 --> 00:22:37.550
the first part is talking chiefly about commercial paper,
431
00:22:39.090 --> 00:22:42.160
and the disarmament of commercial paper.
432
00:22:42.160 --> 00:22:46.020
There is this whole process in the 19th century,
433
00:22:46.020 --> 00:22:49.003
that a creditor and go through in order to enforce,
434
00:22:50.200 --> 00:22:52.990
at that time a protective instrument against the debtor.
435
00:22:52.990 --> 00:22:56.130
And the notary ended up playing an important part,
436
00:22:56.130 --> 00:22:59.350
because if they were an official witness to these events.
437
00:22:59.350 --> 00:23:00.930
You had to present the notes--
438
00:23:00.930 --> 00:23:05.930
Then I get confused about what that means.
439
00:23:05.940 --> 00:23:08.430
What last sentence, including recording
440
00:23:08.430 --> 00:23:11.820
those shall in no case exceed $1.25.
441
00:23:11.820 --> 00:23:14.980
It's obviously, it sounds like
442
00:23:14.980 --> 00:23:18.520
in no case except for ones described above, or.
443
00:23:18.520 --> 00:23:21.190
'Cause you just said that $2 is allowed
444
00:23:21.190 --> 00:23:25.310
for noting in the certain types of commercial paper, right?
445
00:23:25.310 --> 00:23:28.710
Well, the $1.25 limitation
446
00:23:28.710 --> 00:23:30.860
on noting is just for noting.
447
00:23:30.860 --> 00:23:33.440
Whenever you take it on its face,
448
00:23:33.440 --> 00:23:35.973
whenever a notary does a noting,
449
00:23:37.210 --> 00:23:41.630
they can't charge more than $1.25 period,
450
00:23:41.630 --> 00:23:44.143
except above when they note,
451
00:23:46.010 --> 00:23:47.770
approaches a crucial part paper.
452
00:23:47.770 --> 00:23:49.883
They can charge 75 cents.
453
00:23:51.080 --> 00:23:55.303
But no event for anything, can they charge more than $1.25.
454
00:23:56.690 --> 00:24:00.420
So period, so any--
I'm confused 'cause you said
455
00:24:00.420 --> 00:24:03.130
they can do $2 for something, right?
456
00:24:03.130 --> 00:24:07.100
No, they can do $2 as an aggregate limitation,
457
00:24:07.100 --> 00:24:09.930
when they're actually drafting a protest,
458
00:24:09.930 --> 00:24:11.810
which is one document.
459
00:24:11.810 --> 00:24:15.860
Then they have to note, do an attestation the protest,
460
00:24:15.860 --> 00:24:17.653
that they officially witnessed it.
461
00:24:18.690 --> 00:24:22.550
Then three, they record that protest.
462
00:24:22.550 --> 00:24:24.630
And four, they have to give notices.
463
00:24:24.630 --> 00:24:27.810
Back then, once you wrote up the protest,
464
00:24:27.810 --> 00:24:29.820
you have to send it off to the debtor,
465
00:24:29.820 --> 00:24:32.860
and I'm not sure what else had to get notice of it.
466
00:24:32.860 --> 00:24:36.430
But you had to give all the parties notice of that protest.
467
00:24:36.430 --> 00:24:38.710
So there was a whole process involved.
468
00:24:38.710 --> 00:24:41.200
Both the recording, giving of notice,
469
00:24:41.200 --> 00:24:44.200
the drawing of the protest, and the noting of the protest.
470
00:24:44.200 --> 00:24:45.720
Those are four things.
471
00:24:45.720 --> 00:24:49.123
And they set a fee limit for all those things at $2.
472
00:24:51.150 --> 00:24:52.850
And when they wrap the protest,
473
00:24:52.850 --> 00:24:56.060
that's more than just stamping the thing,
474
00:24:56.060 --> 00:24:59.510
they've got to do something more significant, is that right?
475
00:24:59.510 --> 00:25:01.400
Yes, you have to draft a whole document,
476
00:25:01.400 --> 00:25:03.010
and you have to describe the event,
477
00:25:03.010 --> 00:25:04.320
and then you have to advise everybody
478
00:25:04.320 --> 00:25:07.077
they're gonna be held liable for the dishonorment.
479
00:25:08.430 --> 00:25:10.750
Okay, can I ask one last thing?
480
00:25:10.750 --> 00:25:12.680
You will lie on the Secretary of State.
481
00:25:12.680 --> 00:25:15.960
I was just reading according there, as a notary,
482
00:25:15.960 --> 00:25:17.690
you are a public servant should be able,
483
00:25:17.690 --> 00:25:19.610
excessive charges could result
484
00:25:19.610 --> 00:25:21.840
in complaints to the Governor's Council.
485
00:25:21.840 --> 00:25:24.980
I'm just gonna say, I'm just looking at this.
486
00:25:26.900 --> 00:25:28.090
According to the statute,
487
00:25:28.090 --> 00:25:30.960
notaries make charge no more than $1.25
488
00:25:30.960 --> 00:25:32.710
for noting, and recording a document.
489
00:25:32.710 --> 00:25:36.780
No more than $2 for protesting commercial papers.
490
00:25:36.780 --> 00:25:38.420
And notary you're a public servants,
491
00:25:38.420 --> 00:25:41.000
should be able to perform a public service
492
00:25:41.000 --> 00:25:42.260
at a reasonable cost.
493
00:25:42.260 --> 00:25:46.520
Why would they add that, if everything's so defined?
494
00:25:46.520 --> 00:25:48.933
Why did they put that in there?
495
00:25:51.490 --> 00:25:56.490
Because it's been determined by the Governor's Office,
496
00:25:57.650 --> 00:26:01.210
and so by the executive branch,
497
00:26:01.210 --> 00:26:03.600
and by the legislature I'm asserting
498
00:26:03.600 --> 00:26:07.000
that $1.25 was the reasonable cost.
499
00:26:07.000 --> 00:26:09.030
Look, just because the Secretary
500
00:26:09.030 --> 00:26:12.390
of State used the words reasonable cost in that instance,
501
00:26:12.390 --> 00:26:15.820
it doesn't vitiate all the very express fee limitations
502
00:26:15.820 --> 00:26:19.697
that are set forth in Chapter 262, including,
503
00:26:19.697 --> 00:26:23.007
"Hey, nobody's contesting that you can charge more
504
00:26:23.007 --> 00:26:24.777
"than 25 cents for the acknowledgement
505
00:26:24.777 --> 00:26:26.540
"of a deed for example."
506
00:26:26.540 --> 00:26:30.140
That's very precisely laid out in Section 262.
507
00:26:30.140 --> 00:26:32.790
And then in another six section,
508
00:26:32.790 --> 00:26:35.680
the legislature gives the power to notaries
509
00:26:35.680 --> 00:26:39.420
to take acknowledgement of deeds and other instruments,
510
00:26:39.420 --> 00:26:42.740
which it's fair to say
511
00:26:42.740 --> 00:26:45.960
that the legislature equates acknowledgement of deeds,
512
00:26:45.960 --> 00:26:47.147
with the acknowledgment of other instruments.
513
00:26:47.147 --> 00:26:48.900
And in fact in practice it's the same,
514
00:26:48.900 --> 00:26:51.250
then personally appearing before me so and so,
515
00:26:51.250 --> 00:26:53.590
acknowledged the foregoing to be his free act indeed.
516
00:26:53.590 --> 00:26:55.410
That's what it always says.
517
00:26:55.410 --> 00:26:58.067
The fee is really limited for those instances,
518
00:26:58.067 --> 00:27:01.500
the vast majority to 25 cents.
519
00:27:01.500 --> 00:27:05.390
But it has been interpreted over time as a $1.25.
520
00:27:05.390 --> 00:27:08.683
If you're within that, that's the catch all outer limit.
521
00:27:10.030 --> 00:27:11.680
Thank you, that's all I've got.
522
00:27:12.700 --> 00:27:13.830
This is Chief Justice Gants.
523
00:27:13.830 --> 00:27:18.603
I wanna turn you to chapter 222, Section 19.
524
00:27:20.747 --> 00:27:24.843
And it say that notary public shall perform a notarial act
525
00:27:26.070 --> 00:27:28.600
for any person requesting such act,
526
00:27:28.600 --> 00:27:30.530
who tenders the fee provided for
527
00:27:30.530 --> 00:27:33.730
in Section 41 of Chapter 262,
528
00:27:33.730 --> 00:27:37.273
or any other general or special law or executive order.
529
00:27:37.273 --> 00:27:39.173
And then it says, and that's of course,
530
00:27:40.170 --> 00:27:42.007
reasonably that the notary act
531
00:27:43.030 --> 00:27:44.443
is unlawful, whatever else.
532
00:27:47.776 --> 00:27:50.110
Is it your view that that essentially,
533
00:27:50.110 --> 00:27:54.450
regardless of what, I mean even if your brother is right
534
00:27:54.450 --> 00:27:57.490
as to what was meant in Section 41,
535
00:27:57.490 --> 00:28:00.290
that it may have been limited to noting?
536
00:28:00.290 --> 00:28:05.000
That this expands its scope to include all notarial acts?
537
00:28:05.000 --> 00:28:06.723
Yes, absolutely.
538
00:28:08.130 --> 00:28:09.910
Does this also mean that the governor
539
00:28:09.910 --> 00:28:12.293
by executive order could increase the $1.25?
540
00:28:13.360 --> 00:28:14.587
Does this give the governor
541
00:28:14.587 --> 00:28:18.840
of the legislative authority to increase?
542
00:28:18.840 --> 00:28:21.940
Well yeah, well it's specifically mentioned,
543
00:28:21.940 --> 00:28:23.540
well we're talking about the new statute
544
00:28:23.540 --> 00:28:26.350
that was passed in 2016 Your Honor?
545
00:28:26.350 --> 00:28:28.010
Right.
Yeah, so yes,
546
00:28:28.010 --> 00:28:29.880
the statute specifically gives
547
00:28:29.880 --> 00:28:31.680
the governor the power to (mumbles).
548
00:28:34.170 --> 00:28:38.830
So if you're obligated to perform a notarial act,
549
00:28:38.830 --> 00:28:40.673
if somebody gives you the $1.25,
550
00:28:47.970 --> 00:28:52.140
then you're effectively saying that the legislature
551
00:28:52.140 --> 00:28:55.020
with regards to what they did in 1830,
552
00:28:55.020 --> 00:28:59.850
in 2016 has essentially said Section 41
553
00:28:59.850 --> 00:29:04.450
is to be the price for all notarial acts.
554
00:29:04.450 --> 00:29:05.903
Is that what your arguing?
555
00:29:07.288 --> 00:29:08.370
I believe so.
556
00:29:08.370 --> 00:29:09.203
Yes, Your Honor.
557
00:29:09.203 --> 00:29:11.714
The new statute is in such.
558
00:29:11.714 --> 00:29:14.190
Was there any, I don't know the history
559
00:29:14.190 --> 00:29:18.580
of this notary public are a substantial group
560
00:29:18.580 --> 00:29:20.700
with considerable lobbying power.
561
00:29:20.700 --> 00:29:24.770
Is there any legislative history with regard to 222,
562
00:29:24.770 --> 00:29:27.810
Section 19, or the entire set of statutes
563
00:29:27.810 --> 00:29:32.220
that were passed as part of the acts of 2016,
564
00:29:32.220 --> 00:29:34.550
which would shed light on this?
565
00:29:34.550 --> 00:29:39.507
No, Your Honor, well the new chapter 222,
566
00:29:43.240 --> 00:29:47.506
really it codified the executive order 455.
567
00:29:47.506 --> 00:29:48.339
'Cause everything that was
568
00:29:48.339 --> 00:29:51.620
in 455 was essentially implemented.
569
00:29:51.620 --> 00:29:54.720
If you look at 455, and you look at the new statute.
570
00:29:54.720 --> 00:29:59.720
It implemented chapter four, the executive order 455.
571
00:29:59.970 --> 00:30:03.120
So it's, the new Chapter 222
572
00:30:03.120 --> 00:30:06.153
is more expansive and more precise, actually.
573
00:30:07.280 --> 00:30:10.420
And that's the statute which, same statue,
574
00:30:10.420 --> 00:30:11.770
which then made it a crime.
575
00:30:13.480 --> 00:30:14.313
I'm sorry, Your Honor.
576
00:30:14.313 --> 00:30:17.370
That's the same statute which made it a crime to--
577
00:30:17.370 --> 00:30:19.042
Yes, that is the same.
578
00:30:19.042 --> 00:30:21.180
It is now a crime to violate the terms
579
00:30:21.180 --> 00:30:24.440
of the notary statute, it was not before.
580
00:30:24.440 --> 00:30:26.990
It's only a violation of this chapter.
581
00:30:26.990 --> 00:30:29.470
So it's a violation of chapter 222.
582
00:30:29.470 --> 00:30:31.980
Not necessarily a violation of 262,
583
00:30:31.980 --> 00:30:36.430
except to the extent that it's incorporated in 222, correct?
584
00:30:36.430 --> 00:30:39.193
Yes, I agree, Your Honor, exactly.
585
00:30:40.440 --> 00:30:45.440
And now that the $1.25 was established, what 1830?
586
00:30:48.850 --> 00:30:51.850
Actually was, the catch all was,
587
00:30:51.850 --> 00:30:55.110
the original statute did not have the catch off.
588
00:30:55.110 --> 00:30:57.350
And then though the wording was changed,
589
00:30:57.350 --> 00:31:01.860
and it was first passed in 1836 with respect to protests.
590
00:31:01.860 --> 00:31:06.130
And then so all of protesting was actually covered.
591
00:31:06.130 --> 00:31:09.490
And all the costs of protesting were actually covered.
592
00:31:09.490 --> 00:31:10.530
That's an important point.
593
00:31:10.530 --> 00:31:15.270
The legislature decided to go back, and add a catch on 1839.
594
00:31:15.270 --> 00:31:18.340
And so why would they do that if they weren't many meaning
595
00:31:18.340 --> 00:31:20.520
to catch noting and any document,
596
00:31:20.520 --> 00:31:23.970
they had already covered all the various costs
597
00:31:23.970 --> 00:31:27.480
of protests with extreme specificity.
598
00:31:27.480 --> 00:31:30.760
From notices, to recording, to the noting,
599
00:31:30.760 --> 00:31:34.500
to the overall charge for those pieces
600
00:31:34.500 --> 00:31:37.310
of paper over 500, or under 500.
601
00:31:37.310 --> 00:31:40.480
So they go back in 1835, and add this catch all.
602
00:31:40.480 --> 00:31:43.660
And they also add the mandatory language shall,
603
00:31:43.660 --> 00:31:45.370
and no instant shall.
604
00:31:45.370 --> 00:31:48.750
So it was much more sweeping, and so
605
00:31:48.750 --> 00:31:50.810
that could be the particularity with which
606
00:31:50.810 --> 00:31:53.840
that was inserted three years after the original statute,
607
00:31:53.840 --> 00:31:55.533
also suggests that they meant,
608
00:31:55.533 --> 00:31:57.040
that the legislature meant
609
00:31:57.040 --> 00:31:59.543
that statement to have broad import.
610
00:32:00.430 --> 00:32:03.730
Now when about 99.9% of statutes,
611
00:32:03.730 --> 00:32:08.503
which said a particular dollar figure before the Civil War,
612
00:32:10.790 --> 00:32:12.970
we generally cannot even imagine
613
00:32:12.970 --> 00:32:17.183
that that dollar figure would be governing today.
614
00:32:19.060 --> 00:32:22.783
Why should this case be the extraordinary exception?
615
00:32:24.040 --> 00:32:25.830
Well, Your Honor, it just shows how important.
616
00:32:25.830 --> 00:32:28.540
The legislatures revisit this statute.
617
00:32:28.540 --> 00:32:30.440
I've cited it maybe eight,
618
00:32:30.440 --> 00:32:34.200
nine times over since the 19th century.
619
00:32:34.200 --> 00:32:38.330
And they've purposely chosen never to raise those fees.
620
00:32:38.330 --> 00:32:39.870
And not only the legislature,
621
00:32:39.870 --> 00:32:43.880
including in this revisiting of the statute in 2016.
622
00:32:43.880 --> 00:32:46.320
So the legislature and the governor's office,
623
00:32:46.320 --> 00:32:48.170
every branch of government,
624
00:32:48.170 --> 00:32:50.380
the courts as well up till today,
625
00:32:50.380 --> 00:32:52.410
have really emphasized the importance
626
00:32:52.410 --> 00:32:55.250
of keeping these services cheap.
627
00:32:55.250 --> 00:32:58.620
Because these services are often important
628
00:32:58.620 --> 00:33:01.820
to access to legal proceedings.
629
00:33:01.820 --> 00:33:05.460
And they don't want the most disadvantaged,
630
00:33:05.460 --> 00:33:07.410
a portion of the population,
631
00:33:07.410 --> 00:33:10.430
to go without these important services.
632
00:33:10.430 --> 00:33:12.880
They might be deprived to due process.
633
00:33:12.880 --> 00:33:16.410
To some people, $10 doesn't make a difference,
634
00:33:16.410 --> 00:33:19.410
or the $8.75 differential.
635
00:33:19.410 --> 00:33:22.800
But for other people, it does make a difference.
636
00:33:22.800 --> 00:33:25.620
And I think that's what this is all aimed at.
637
00:33:25.620 --> 00:33:26.870
Alright, I have no further questions.
638
00:33:26.870 --> 00:33:29.770
Any other Justice have any further questions for Mr. Brown?
639
00:33:29.770 --> 00:33:31.973
Just one, Justice Budd.
640
00:33:33.420 --> 00:33:38.420
I noticed that your brother mentions in the brief
641
00:33:38.850 --> 00:33:43.850
that noting is used in a particular way here,
642
00:33:45.470 --> 00:33:49.150
because it's about making sure the date
643
00:33:49.150 --> 00:33:50.860
on the protest is right,
644
00:33:50.860 --> 00:33:53.280
so that they can go forward with the protest
645
00:33:53.280 --> 00:33:54.370
and all of that.
646
00:33:54.370 --> 00:33:58.760
And he cites several different sources for
647
00:33:58.760 --> 00:34:01.820
that particular meaning of protest.
648
00:34:01.820 --> 00:34:05.730
And I was wondering if you agree with that meaning,
649
00:34:05.730 --> 00:34:08.610
but you just are saying that
650
00:34:08.610 --> 00:34:12.900
it's different in the last sentence of Section 41?
651
00:34:12.900 --> 00:34:15.100
Or you don't agree with that meeting at all?
652
00:34:17.050 --> 00:34:20.960
I disagree that noting in this instance,
653
00:34:20.960 --> 00:34:24.580
is limited to the, the application
654
00:34:24.580 --> 00:34:29.160
of zoning this is limited to noting protests only.
655
00:34:29.160 --> 00:34:32.930
Note, their argument is that noting only refers
656
00:34:32.930 --> 00:34:35.630
to the protest of commercial paper,
657
00:34:35.630 --> 00:34:40.200
and that this court is to ignore the words in no case,
658
00:34:40.200 --> 00:34:42.990
or insert the words that it means
659
00:34:42.990 --> 00:34:45.840
in no case of protesting commercial paper.
660
00:34:45.840 --> 00:34:49.970
I do agree in those cases that they cite you.
661
00:34:49.970 --> 00:34:53.220
I do agree that with the definition of noting,
662
00:34:53.220 --> 00:34:55.400
as being an attestation,
663
00:34:55.400 --> 00:34:58.340
but there's nothing in those cases that says
664
00:34:58.340 --> 00:35:02.970
that attestation, a notary's attestation or noting,
665
00:35:02.970 --> 00:35:07.970
is only used in an instance of protesting commercial paper.
666
00:35:08.410 --> 00:35:11.110
That's a very, very important distinction.
667
00:35:11.110 --> 00:35:14.450
Noting is an attestation, that is the general meeting.
668
00:35:14.450 --> 00:35:16.270
And those cases say so.
669
00:35:16.270 --> 00:35:17.577
There is no case that says,
670
00:35:17.577 --> 00:35:19.477
"Oh, the only type of document
671
00:35:19.477 --> 00:35:22.517
"that is noted by a notary is commercial,
672
00:35:22.517 --> 00:35:24.380
"the protester commercial paper."
673
00:35:24.380 --> 00:35:25.733
That's where we disagree.
674
00:35:26.870 --> 00:35:28.210
Okay, thanks.
675
00:35:28.210 --> 00:35:29.410
Any further questions?
676
00:35:30.300 --> 00:35:31.731
Mr Brown, thank you.
677
00:35:31.731 --> 00:35:32.564
And now we'll hear from UPS Stores.
678
00:35:32.564 --> 00:35:33.430
Thank you, Justice.
679
00:35:36.520 --> 00:35:37.670
Thank you, Mr. Chief Justice,
680
00:35:37.670 --> 00:35:39.580
and may it please the court.
681
00:35:39.580 --> 00:35:42.730
Joe Palmore here on behalf of the UPS Store.
682
00:35:42.730 --> 00:35:45.130
This is a statutory construction case.
683
00:35:45.130 --> 00:35:47.350
So I'd like to make four points about the relevant statute.
684
00:35:47.350 --> 00:35:48.273
If we please, before we do that,
685
00:35:48.273 --> 00:35:49.660
I hear some more crackling.
686
00:35:49.660 --> 00:35:51.110
If there's anybody who's on speaker,
687
00:35:51.110 --> 00:35:53.870
can you take it off speaker,
688
00:35:53.870 --> 00:35:56.833
put it on mute so that we can hear Mr. Palmore better.
689
00:35:58.440 --> 00:36:00.620
And that may be a little bit better.
690
00:36:00.620 --> 00:36:03.400
I'm sorry, you had four points, Mr. Palmore.
691
00:36:03.400 --> 00:36:06.380
Yes, the statutory construction case.
692
00:36:06.380 --> 00:36:07.640
So I'd like to make four points
693
00:36:07.640 --> 00:36:08.720
about the relevant statute,
694
00:36:08.720 --> 00:36:10.940
through statutory interpretation.
695
00:36:10.940 --> 00:36:12.750
These points show that contrary
696
00:36:12.750 --> 00:36:14.430
to Mr. Richardson's arguments,
697
00:36:14.430 --> 00:36:16.860
Massachusetts law does not cap the fees
698
00:36:16.860 --> 00:36:19.003
for all notarial acts at $1.25.
699
00:36:20.680 --> 00:36:23.410
At the heart of this case in Section 41.
700
00:36:23.410 --> 00:36:26.350
And as Justice Louis and Buds questions reflected,
701
00:36:26.350 --> 00:36:28.820
that provision provides a detailed schedule
702
00:36:28.820 --> 00:36:30.843
for notary services related to the protests
703
00:36:30.843 --> 00:36:33.350
that dishonored negotiable instruments,
704
00:36:33.350 --> 00:36:35.510
and only for those services.
705
00:36:35.510 --> 00:36:38.380
The phrase at the end on which my brother relied,
706
00:36:38.380 --> 00:36:41.480
the whole cost of noting, including recording and notices,
707
00:36:41.480 --> 00:36:43.560
is the shorthand reference to the phrase
708
00:36:43.560 --> 00:36:46.660
that appears earlier in the very same sentence.
709
00:36:46.660 --> 00:36:48.050
Noting the non acceptance,
710
00:36:48.050 --> 00:36:50.080
or non payment of a bill of exchange,
711
00:36:50.080 --> 00:36:52.230
or other negotiable instruments.
712
00:36:52.230 --> 00:36:55.220
That is consistent with the numerous 19th century cases,
713
00:36:55.220 --> 00:36:58.090
and secondary sources we cited in our brief.
714
00:36:58.090 --> 00:37:02.120
Noting in Section 41, does not mean all notarial acts.
715
00:37:02.120 --> 00:37:03.600
In fact in the notarial act
716
00:37:03.600 --> 00:37:07.610
is a separately defined term under Massachusetts law,
717
00:37:07.610 --> 00:37:09.330
and it is broader.
718
00:37:09.330 --> 00:37:12.990
Second, Section 43 does not apply here.
719
00:37:12.990 --> 00:37:16.270
That provision and its references to like services provides
720
00:37:16.270 --> 00:37:17.860
that when public officer A,
721
00:37:17.860 --> 00:37:21.270
provides the very same service as public officer B,
722
00:37:21.270 --> 00:37:25.400
public officer A is subject to a fee cap for that service,
723
00:37:25.400 --> 00:37:27.530
even if the relevant fee cap statute
724
00:37:27.530 --> 00:37:31.190
is expressly addressed only to public officer B.
725
00:37:31.190 --> 00:37:33.790
In any event, even if Section 43 incorporates
726
00:37:33.790 --> 00:37:37.330
the similarity standard, it would not be satisfied here.
727
00:37:37.330 --> 00:37:38.540
The specialized function
728
00:37:38.540 --> 00:37:40.710
of noting a dishonored negotiable instrument,
729
00:37:40.710 --> 00:37:44.313
is not similar to the simple act of witnessing a signature.
730
00:37:45.290 --> 00:37:50.250
Third, the 2017 notary law did not amend Section 41
731
00:37:50.250 --> 00:37:54.820
or 43 to expand their scope, nor did it reenact them.
732
00:37:54.820 --> 00:37:56.510
So this case turns exclusively
733
00:37:56.510 --> 00:38:00.880
on the long standing meaning of those pre existing statutes.
734
00:38:00.880 --> 00:38:04.600
Even if the 2017 legislature, or Governor Romney before it,
735
00:38:04.600 --> 00:38:07.600
made an unexpressed assumption about the scope
736
00:38:07.600 --> 00:38:11.270
of Section 41, that couldn't alter it meaning.
737
00:38:11.270 --> 00:38:12.960
Statutes change through amendment,
738
00:38:12.960 --> 00:38:15.503
not the subjective thoughts of elected officials.
739
00:38:16.360 --> 00:38:18.910
Fourth, and finally, the rule (mumbles)
740
00:38:18.910 --> 00:38:22.420
and bedrock fair notice principles compel the same results.
741
00:38:22.420 --> 00:38:24.800
For the reasons I just gave the traditional tools
742
00:38:24.800 --> 00:38:28.340
of statutory construction, you'll put one answer here.
743
00:38:28.340 --> 00:38:30.810
But even even if there is any ambiguity
744
00:38:30.810 --> 00:38:32.820
on the scope of these statutes,
745
00:38:32.820 --> 00:38:34.860
the fact that they are criminally enforceable,
746
00:38:34.860 --> 00:38:39.480
means that ambiguity must be resolved to narrow, not expand.
747
00:38:39.480 --> 00:38:42.090
Mr. Chief Justice, I welcome the courts questions.
748
00:38:42.090 --> 00:38:45.500
Okay, let's turn to Justice Lank.
749
00:38:45.500 --> 00:38:48.180
I'm gonna ask you the same question I asked your brother,
750
00:38:48.180 --> 00:38:49.960
which is what do you think
751
00:38:49.960 --> 00:38:51.860
of the amicus brief history (murmurs)?
752
00:38:55.210 --> 00:38:57.960
It an interesting historical treatment
753
00:38:57.960 --> 00:39:00.720
of notary laws during the colonial era.
754
00:39:00.720 --> 00:39:04.683
I don't think it's of any particular relevance to this case.
755
00:39:05.520 --> 00:39:09.690
The ME cites no evidence that the legislature in 1830,
756
00:39:09.690 --> 00:39:13.390
meant to codify or incorporate those colonial statutes.
757
00:39:13.390 --> 00:39:15.120
And if anything, I think they cut the other way.
758
00:39:15.120 --> 00:39:16.490
Because what Amicus argues,
759
00:39:16.490 --> 00:39:20.560
was that the colonial statutes prescribed fees
760
00:39:20.560 --> 00:39:22.543
for all quote on quote writings.
761
00:39:23.470 --> 00:39:26.260
The legislature in the 1830s did not use that term.
762
00:39:26.260 --> 00:39:29.910
Instead, it adopted in its provision related
763
00:39:29.910 --> 00:39:32.670
to the protest of negotiable instruments,
764
00:39:32.670 --> 00:39:35.970
and the noting of negotiable instruments,
765
00:39:35.970 --> 00:39:37.710
which is, in this context,
766
00:39:37.710 --> 00:39:40.870
nothing more than a preliminary step in protest.
767
00:39:40.870 --> 00:39:43.940
So I think amicus brief is interesting as a piece
768
00:39:43.940 --> 00:39:45.400
of legal history, but it's not
769
00:39:45.400 --> 00:39:47.600
at any particular relevance here.
770
00:39:47.600 --> 00:39:50.230
You don't think it's wrong in any respect though?
771
00:39:50.230 --> 00:39:54.450
I don't, except perhaps irrelevant, in our favor,
772
00:39:54.450 --> 00:39:57.551
in that it shows that there was perhaps a broader statute
773
00:39:57.551 --> 00:39:59.990
that's been used earlier that regulated the fee
774
00:39:59.990 --> 00:40:00.823
for all writings,
775
00:40:00.823 --> 00:40:04.880
but the legislature chose not to adopt that.
776
00:40:04.880 --> 00:40:07.440
And instead it adopted this targeted provision.
777
00:40:07.440 --> 00:40:09.280
So to the extent that the amicus brief is relevant,
778
00:40:09.280 --> 00:40:11.060
I think it supports out (murmurs).
779
00:40:11.060 --> 00:40:11.997
Okay, Thank you,
780
00:40:13.175 --> 00:40:14.690
Justice Gaziano.
781
00:40:14.690 --> 00:40:16.170
I have no questions, thank you.
782
00:40:16.170 --> 00:40:17.780
Justice Lowy.
783
00:40:17.780 --> 00:40:22.220
Yes, tell me now that this has criminal implications.
784
00:40:22.220 --> 00:40:27.220
How does the rule entity come into this analysis?
785
00:40:29.670 --> 00:40:32.140
Well, I think it comes in as a backstop Justice.
786
00:40:32.140 --> 00:40:35.430
I don't think you need it here, because I think that,
787
00:40:35.430 --> 00:40:37.290
for the reasons that we go over in the brief,
788
00:40:37.290 --> 00:40:40.350
and that I spoke about briefly before.
789
00:40:40.350 --> 00:40:43.240
The statute is quite clear that it doesn't extend
790
00:40:43.240 --> 00:40:44.440
to all notarial acts.
791
00:40:44.440 --> 00:40:48.350
In this context, it applies only to noting commercial paper,
792
00:40:48.350 --> 00:40:50.570
in this context of a protest.
793
00:40:50.570 --> 00:40:53.500
But to the extent that there is any ambiguity
794
00:40:53.500 --> 00:40:56.750
on that question, the rule of lenity
795
00:40:56.750 --> 00:40:59.880
and basic fair notice principles would require
796
00:40:59.880 --> 00:41:02.700
it to be construed against this application,
797
00:41:02.700 --> 00:41:03.820
because the legislature
798
00:41:03.820 --> 00:41:07.210
has now attached criminal penalties to the statute.
799
00:41:07.210 --> 00:41:09.500
And even though this is a civil case,
800
00:41:09.500 --> 00:41:11.667
the statute can mean only one thing.
801
00:41:11.667 --> 00:41:14.550
And this court has explained in the Doe case that we cite
802
00:41:14.550 --> 00:41:17.560
in our brief, that the rule of lenity applies,
803
00:41:17.560 --> 00:41:19.490
even in a civil context when you're dealing
804
00:41:19.490 --> 00:41:22.200
with a rule regulating primary conduct
805
00:41:22.200 --> 00:41:24.773
that is enforceable civilly and criminally.
806
00:41:25.960 --> 00:41:30.080
And of what input is it, that the governor
807
00:41:30.080 --> 00:41:32.130
and perhaps the secretary of state
808
00:41:32.130 --> 00:41:34.193
have a different view than you?
809
00:41:36.150 --> 00:41:37.986
I don't think it's of anything interest
810
00:41:37.986 --> 00:41:39.150
to the extent that they do.
811
00:41:39.150 --> 00:41:41.910
And I don't really think that they do,
812
00:41:41.910 --> 00:41:45.060
or at least if they did, it wasn't clearly expressed.
813
00:41:45.060 --> 00:41:46.610
I think the executive order
814
00:41:46.610 --> 00:41:49.220
from Governor Romney was quite explicit.
815
00:41:49.220 --> 00:41:51.370
It said right up top that
816
00:41:51.370 --> 00:41:54.860
it does amend or alter preexisting law.
817
00:41:54.860 --> 00:41:59.410
It took Section 41 as it existed
818
00:41:59.410 --> 00:42:01.453
on the statute books at that time.
819
00:42:02.580 --> 00:42:07.180
And the ranking the mechanistic guidelines
820
00:42:07.180 --> 00:42:09.620
with list Your Honor is referring to.
821
00:42:09.620 --> 00:42:12.070
If the secretary of the Commonwealth guidelines,
822
00:42:12.070 --> 00:42:14.260
they actually again put a blog position
823
00:42:14.260 --> 00:42:17.030
for the reasons that Justice Kafker mentioned.
824
00:42:17.030 --> 00:42:21.200
They simply take Section 41 fee cap for protest and noting,
825
00:42:21.200 --> 00:42:23.660
without elaborating on what those terms mean.
826
00:42:23.660 --> 00:42:26.330
But then they go on to admonish notaries
827
00:42:26.330 --> 00:42:28.950
to charge only reasonable fees,
828
00:42:28.950 --> 00:42:32.150
that reasonableness standard would be unnecessary
829
00:42:32.150 --> 00:42:34.470
if all notarial acts were already
830
00:42:34.470 --> 00:42:37.763
fee capped at $1.25 as my brother argues.
831
00:42:38.830 --> 00:42:40.340
Thank you.
832
00:42:40.340 --> 00:42:41.173
Justice Budd.
833
00:42:44.770 --> 00:42:49.290
What are we to make of the fact that the title
834
00:42:49.290 --> 00:42:53.360
of the section is notaries public enumeration of fees,
835
00:42:53.360 --> 00:42:56.280
and then Section 41 says the fees
836
00:42:56.280 --> 00:42:58.770
of notaries public shall be as follows?
837
00:42:58.770 --> 00:43:01.910
And according to your interpretation of this,
838
00:43:01.910 --> 00:43:06.910
it only talks about protesting negotiable instruments which,
839
00:43:07.200 --> 00:43:08.470
do we even do this anymore?
840
00:43:08.470 --> 00:43:09.920
I mean, is this even a thing?
841
00:43:10.780 --> 00:43:13.620
It is for foreign negotiable instruments Justice.
842
00:43:13.620 --> 00:43:15.980
Okay, but why--
And this--
843
00:43:15.980 --> 00:43:20.420
Yeah.
So in the 19th century,
844
00:43:20.420 --> 00:43:23.970
these were the principal acts of notary publics.
845
00:43:23.970 --> 00:43:26.840
And we spoke to the opinion of the Justices
846
00:43:26.840 --> 00:43:28.810
in our brief for that proposition.
847
00:43:28.810 --> 00:43:30.650
So at the time this statute was adopted,
848
00:43:30.650 --> 00:43:34.970
these were very important acts that a notary provided
849
00:43:36.740 --> 00:43:39.030
to the public, and it stands to reason that
850
00:43:39.030 --> 00:43:40.690
that's where the legislature would
851
00:43:40.690 --> 00:43:43.473
have targeted, its a price regulation.
852
00:43:44.570 --> 00:43:48.670
And again, the title that saying that the fees
853
00:43:48.670 --> 00:43:50.960
for notary publics, and the fees for notary publics shall
854
00:43:50.960 --> 00:43:53.610
be as follows, doesn't tell you anything unless
855
00:43:53.610 --> 00:43:58.510
you read on and you see what the enumeration of the fees is.
856
00:43:58.510 --> 00:44:01.880
And I would point out that the same analysis applies
857
00:44:01.880 --> 00:44:06.723
to Section 16 and 19 of the 2017 notary statute.
858
00:44:11.060 --> 00:44:14.190
That my brother said might have changed,
859
00:44:14.190 --> 00:44:18.880
or made the $1.25 the general applicable.
860
00:44:18.880 --> 00:44:19.970
That's not correct.
861
00:44:19.970 --> 00:44:23.960
All those statutes provide is that the cap quote provided
862
00:44:23.960 --> 00:44:27.360
in Section 41 apply to the notarial acts enumerated
863
00:44:27.360 --> 00:44:28.830
in Section 41.
864
00:44:28.830 --> 00:44:31.760
And section 41 of course includes a detailed schedules,
865
00:44:31.760 --> 00:44:34.800
use of different services related to negotiable instruments.
866
00:44:34.800 --> 00:44:37.560
And you have to know which service you're talking about,
867
00:44:37.560 --> 00:44:39.700
to see which fee cap applied.
868
00:44:39.700 --> 00:44:42.540
And it wouldn't make sense to say that the fee cap
869
00:44:42.540 --> 00:44:46.600
in Section 41 apply to all the notarial acts given 41
870
00:44:46.600 --> 00:44:49.593
has if I count them up, six different fee caps.
871
00:44:50.580 --> 00:44:54.161
You can imagine an analogous situation as a (mumbles)
872
00:44:54.161 --> 00:44:56.060
that a consumer shall not purchase a good
873
00:44:56.060 --> 00:44:59.980
without paying the sales tax provided for in the tax code.
874
00:44:59.980 --> 00:45:03.200
That would not make all good subject to sales tax,
875
00:45:03.200 --> 00:45:05.720
you still have to go to the tax code to determine
876
00:45:05.720 --> 00:45:09.040
which goods were taxable, and which goods were exempt.
877
00:45:09.040 --> 00:45:12.100
And so to hear that provisions of the notary act 16 A
878
00:45:12.100 --> 00:45:15.140
and 19, require compliance with a fee schedule
879
00:45:15.140 --> 00:45:18.610
in section 41, but they don't change that schedule,
880
00:45:18.610 --> 00:45:20.550
you still have to look at section 41
881
00:45:20.550 --> 00:45:23.934
to determine what is covered and what is not.
882
00:45:23.934 --> 00:45:27.653
And so then a notary could charge really anything he
883
00:45:28.560 --> 00:45:33.030
or she might want to charge, for anything outside
884
00:45:33.030 --> 00:45:35.883
of protesting negotiable instruments.
885
00:45:37.150 --> 00:45:41.188
Well there's no fee cap, the Secretary point
886
00:45:41.188 --> 00:45:43.690
that says that the charges must be reasonable.
887
00:45:43.690 --> 00:45:47.060
But that wouldn't make Massachusetts unusual.
888
00:45:47.060 --> 00:45:49.843
If you look AA volume three page 15,
889
00:45:49.843 --> 00:45:53.390
there's a chart there of states and their handling
890
00:45:53.390 --> 00:45:58.290
of notarial acts, and price regulation of them.
891
00:45:58.290 --> 00:46:01.540
And there are a number of states, in fact say,
892
00:46:01.540 --> 00:46:03.000
a notary may set their own fees.
893
00:46:03.000 --> 00:46:04.240
And I will also point out that
894
00:46:04.240 --> 00:46:07.860
that chart lists Massachusetts, among them.
895
00:46:07.860 --> 00:46:10.560
My brother said that the whole world has always
896
00:46:10.560 --> 00:46:14.350
viewed these notary statutes his way,
897
00:46:14.350 --> 00:46:15.670
but that's not correct.
898
00:46:15.670 --> 00:46:17.500
There experts notary bodies,
899
00:46:17.500 --> 00:46:21.300
people whose job is to study these regulations,
900
00:46:21.300 --> 00:46:24.860
say that fees are not regulated in Massachusetts
901
00:46:24.860 --> 00:46:29.760
for the notarial act beyond protest, or noting.
902
00:46:29.760 --> 00:46:33.250
A protest, and those documents can be found
903
00:46:33.250 --> 00:46:35.476
at volume at the appendix,
904
00:46:35.476 --> 00:46:38.360
page 14, page six, page 88,
905
00:46:38.360 --> 00:46:41.260
they predate and post date the 2017 amendment.
906
00:46:41.260 --> 00:46:42.093
I'm sorry, could you repeat.
907
00:46:42.093 --> 00:46:43.400
It is kind of crackly.
908
00:46:43.400 --> 00:46:45.270
Can you just repeat where you would find
909
00:46:45.270 --> 00:46:46.930
that in your appendix?
910
00:46:46.930 --> 00:46:48.413
Yes, it's volume three.
911
00:46:49.514 --> 00:46:52.653
Just there page six, page 14 and page 88.
912
00:46:55.201 --> 00:46:58.050
And about the chart that you mentioned?
913
00:46:58.050 --> 00:47:00.923
The chart is on page 15, of the same volume.
914
00:47:02.730 --> 00:47:03.563
Thank you.
915
00:47:05.020 --> 00:47:05.870
Justice Cypher.
916
00:47:07.020 --> 00:47:09.027
I have no questions, thank you.
917
00:47:09.027 --> 00:47:10.390
Justice Kafker.
918
00:47:10.390 --> 00:47:12.840
I'm just, before you start, are you on a speaker phone?
919
00:47:12.840 --> 00:47:14.370
'Cause you're very hard to hear.
920
00:47:14.370 --> 00:47:16.263
And I can hear everyone else clearly.
921
00:47:17.420 --> 00:47:19.280
I'm not on the speakerphone, I apologize for that.
922
00:47:19.280 --> 00:47:20.220
I will try to (murmurs).
923
00:47:20.220 --> 00:47:25.220
Okay, yeah so I guess back to settled expectations.
924
00:47:27.710 --> 00:47:30.113
Was Romney's executive order,
925
00:47:31.500 --> 00:47:34.023
did that unsettled expectations.
926
00:47:35.940 --> 00:47:38.953
I just, I'm trying to understand,
927
00:47:40.060 --> 00:47:42.530
what the world was before that executive order.
928
00:47:42.530 --> 00:47:44.752
Was it exactly the same?
929
00:47:44.752 --> 00:47:47.283
What did it mean?
930
00:47:50.330 --> 00:47:52.270
I think the world and the relevance
931
00:47:52.270 --> 00:47:53.865
since here was exactly the same.
932
00:47:53.865 --> 00:47:56.490
And you don't have to take my word for it.
933
00:47:56.490 --> 00:47:57.960
The Executive Order itself says that.
934
00:47:57.960 --> 00:48:02.130
It says you can alter or amend existing law.
935
00:48:02.130 --> 00:48:07.130
So it took the fee cap that has long existed in Section 41,
936
00:48:07.270 --> 00:48:08.820
and it reminded the public,
937
00:48:08.820 --> 00:48:11.380
and it reminded notaries that they are mandatory.
938
00:48:11.380 --> 00:48:13.499
But didn't focus there still,
939
00:48:13.499 --> 00:48:16.090
and it didn't change Massachusetts law.
940
00:48:16.090 --> 00:48:19.603
And then fast forward to 2016, 2017.
941
00:48:19.603 --> 00:48:22.440
When the legislature amended the statute,
942
00:48:22.440 --> 00:48:25.270
it simply codified that executive order.
943
00:48:25.270 --> 00:48:26.677
Again, the executive order was said
944
00:48:26.677 --> 00:48:31.180
it did not intend to alter or amend existing law.
945
00:48:31.180 --> 00:48:33.440
If the legislature in 2017 had wanted
946
00:48:33.440 --> 00:48:37.970
to impose $1.25 fee cap on all notarial acts,
947
00:48:37.970 --> 00:48:39.750
it easily could have done that
948
00:48:39.750 --> 00:48:41.907
with a one line provision saying,
949
00:48:41.907 --> 00:48:44.190
"The fee for all the (mumbles) is $1.25."
950
00:48:45.755 --> 00:48:48.120
Notarial acts is a defined term,
951
00:48:48.120 --> 00:48:50.590
in Section One of the new statute.
952
00:48:50.590 --> 00:48:54.020
That section actually with a number of notarial acts,
953
00:48:54.020 --> 00:48:56.850
they're not interchangeable as my brother suggests.
954
00:48:56.850 --> 00:48:58.970
They all have different requirements.
955
00:48:58.970 --> 00:49:01.550
The legislature couldn't provided this fee cap,
956
00:49:01.550 --> 00:49:02.643
if they wanted to.
957
00:49:03.578 --> 00:49:05.140
(mumbles) would have provided fair notice,
958
00:49:05.140 --> 00:49:07.360
for that now criminally enforceable provision,
959
00:49:07.360 --> 00:49:08.593
but it did not do so.
960
00:49:09.770 --> 00:49:12.180
So just you can leave some example,
961
00:49:12.180 --> 00:49:14.780
I understand the one that costs 25 cents,
962
00:49:14.780 --> 00:49:17.480
I understand would cost $2.
963
00:49:17.480 --> 00:49:20.750
What are the ones that are, give me some descriptions
964
00:49:20.750 --> 00:49:24.580
of common notarial acts that are only subject
965
00:49:24.580 --> 00:49:26.513
to the reasonable fee requirement?
966
00:49:28.640 --> 00:49:29.473
Sure, Your Honor.
967
00:49:29.473 --> 00:49:32.623
So, if you look at,
968
00:49:34.400 --> 00:49:39.400
in our statutory addendum, we reproduce Massachusetts code,
969
00:49:40.050 --> 00:49:44.330
Section, Chapter 222, number one definition.
970
00:49:44.330 --> 00:49:46.965
And it lists, acknowledgement, affirmations,
971
00:49:46.965 --> 00:49:48.810
a whole bunch of notarial acts.
972
00:49:48.810 --> 00:49:50.660
And it also defines notarial act,
973
00:49:50.660 --> 00:49:53.803
as any act that a notary public is empowered to perform.
974
00:49:55.088 --> 00:49:57.630
I think the last one on the list is signature witnessing.
975
00:49:57.630 --> 00:50:00.170
This is I thin 72 of our agenda.
976
00:50:00.170 --> 00:50:03.160
And that's the kind of common thing
977
00:50:03.160 --> 00:50:04.673
that we think of as notarizing.
978
00:50:05.540 --> 00:50:07.923
Where you go in, and you sign a document,
979
00:50:07.923 --> 00:50:11.870
and the notary stamp on it.
980
00:50:11.870 --> 00:50:13.347
That's a defined term in the statute.
981
00:50:13.347 --> 00:50:15.230
And that's what Mr. Richardson,
982
00:50:15.230 --> 00:50:18.863
the plaintiffs in the underlying case here, obtained.
983
00:50:19.860 --> 00:50:24.840
And so, Massachusetts has not chosen
984
00:50:24.840 --> 00:50:28.383
to regulate the price for all of those provisions,
985
00:50:29.630 --> 00:50:32.890
it lets in place, the section 41,
986
00:50:32.890 --> 00:50:37.660
which regulated the price only for the very,
987
00:50:37.660 --> 00:50:41.230
what were a very important services this century.
988
00:50:41.230 --> 00:50:44.510
And the provision was adopted in the 1830s,
989
00:50:44.510 --> 00:50:48.700
$1.25 was actually a lot of money at that point.
990
00:50:48.700 --> 00:50:49.533
But there's no way--
991
00:50:49.533 --> 00:50:50.737
Do all these here--
992
00:50:52.359 --> 00:50:53.192
Yes please go ahead.
993
00:50:53.192 --> 00:50:55.520
Do all these signature witnessing
994
00:50:55.520 --> 00:50:58.530
are just subject to reasonable market prices then?
995
00:50:59.940 --> 00:51:01.970
Yes, Your Honor, as many as a number
996
00:51:01.970 --> 00:51:04.036
of other states have done.
997
00:51:04.036 --> 00:51:08.060
But of course, I would point to the facts of this case
998
00:51:08.060 --> 00:51:09.460
aren't particularly relevant,
999
00:51:09.460 --> 00:51:14.460
to the extent that the charges that are reflected
1000
00:51:14.530 --> 00:51:19.050
in the record here, show that we're talking about a $10 fee.
1001
00:51:19.050 --> 00:51:24.050
Or when you include the fee for that notarization
1002
00:51:24.060 --> 00:51:26.310
and service fees, so we're not talking about,
1003
00:51:27.860 --> 00:51:29.303
exorbitant amounts of money.
1004
00:51:30.709 --> 00:51:33.440
Right, okay, that's all I have, thank you.
1005
00:51:33.440 --> 00:51:37.590
Chief Justice Gants, let's assume for the sake
1006
00:51:37.590 --> 00:51:40.510
of this argument, that your argument
1007
00:51:40.510 --> 00:51:42.750
in your brief is correct.
1008
00:51:42.750 --> 00:51:47.750
That in 1836, the term noting meant,
1009
00:51:48.107 --> 00:51:51.150
was a quite defined term, and was referring
1010
00:51:51.150 --> 00:51:54.080
to the particular acts of protests
1011
00:51:54.080 --> 00:51:56.040
which are largely archaic now.
1012
00:51:56.040 --> 00:51:59.580
So assuming you're right, you distinguish
1013
00:51:59.580 --> 00:52:03.520
that there's difference between a notarial act,
1014
00:52:03.520 --> 00:52:07.210
which is broad, and as you note is also defined
1015
00:52:07.210 --> 00:52:09.750
in Section One of 222,
1016
00:52:09.750 --> 00:52:11.583
is based as any acts that a notary public
1017
00:52:11.583 --> 00:52:13.313
is empowered to perform.
1018
00:52:14.710 --> 00:52:16.933
Still stuck, frankly on Section 19.
1019
00:52:18.940 --> 00:52:22.200
Because that says a notary public shall
1020
00:52:22.200 --> 00:52:27.120
perform a notarial act for any person requesting such act,
1021
00:52:27.120 --> 00:52:29.220
who tenders the fee provided for
1022
00:52:29.220 --> 00:52:32.490
in Section 41 of chapter 262,
1023
00:52:32.490 --> 00:52:36.020
or any other general or special or executive order.
1024
00:52:36.020 --> 00:52:39.900
So, why does that mean, what does that not mean?
1025
00:52:39.900 --> 00:52:44.247
That in 2016, the legislature essentially said,
1026
00:52:44.247 --> 00:52:49.010
"Well, the price in Section 41, is the price
1027
00:52:49.010 --> 00:52:54.010
which a notary public must accept for any notarial act,
1028
00:52:54.050 --> 00:52:55.400
even if the definition
1029
00:52:55.400 --> 00:53:00.257
of noting was more limited back in 1836."
1030
00:53:03.260 --> 00:53:05.740
Because, Mr. Chief Justice, there
1031
00:53:05.740 --> 00:53:08.280
is not just one fee in Section 41.
1032
00:53:08.280 --> 00:53:09.630
They're six different fees.
1033
00:53:10.610 --> 00:53:12.833
So it's that reading of the statute,
1034
00:53:12.833 --> 00:53:16.800
which I understand my brother has advanced, could hold up.
1035
00:53:16.800 --> 00:53:19.890
Because one would have to look at section 41.
1036
00:53:19.890 --> 00:53:22.030
Turn the page to Section 41,
1037
00:53:22.030 --> 00:53:25.410
to see what the fees that are quote, provided in.
1038
00:53:25.410 --> 00:53:28.090
That's the phrase that's used in Section 19.
1039
00:53:28.090 --> 00:53:33.090
And when you look at the fees provided in Section 41,
1040
00:53:33.310 --> 00:53:34.450
there are a whole bunch of them.
1041
00:53:34.450 --> 00:53:35.740
There's one for protests.
1042
00:53:35.740 --> 00:53:36.950
There's one for recording.
1043
00:53:36.950 --> 00:53:38.966
There's one for noting.
1044
00:53:38.966 --> 00:53:41.410
There are separate fees for notices,
1045
00:53:41.410 --> 00:53:44.350
then there are tow aggregate fee caps
1046
00:53:44.350 --> 00:53:45.880
for the whole cost of protests,
1047
00:53:45.880 --> 00:53:48.090
and the whole cost of noting.
1048
00:53:48.090 --> 00:53:50.513
And so the legislature,
1049
00:53:50.513 --> 00:53:54.240
this would have been an incredibly awkward way
1050
00:53:54.240 --> 00:53:58.700
for the legislature to (mumbles) one piece of that statute,
1051
00:53:58.700 --> 00:54:01.300
that has six different fee caps,
1052
00:54:01.300 --> 00:54:03.460
somehow broadly enforceable.
1053
00:54:03.460 --> 00:54:06.000
Even in the context of a stack with itself,
1054
00:54:06.000 --> 00:54:09.903
adopted a definition for notarial acts, not noting.
1055
00:54:10.804 --> 00:54:12.710
That's not the way
1056
00:54:12.710 --> 00:54:15.800
that the legislature would have gone about it.
1057
00:54:15.800 --> 00:54:18.267
And Justice Scalia famously said,
1058
00:54:18.267 --> 00:54:21.197
"Legislatures don't hide elephants in loop holes."
1059
00:54:21.197 --> 00:54:26.197
And I think this would have been, an elephant of broad,
1060
00:54:26.410 --> 00:54:28.620
wide ranging price regulation,
1061
00:54:28.620 --> 00:54:31.810
in a mouthful of this your cross reference,
1062
00:54:31.810 --> 00:54:36.383
that isn't the way the legislature would have done it.
1063
00:54:37.245 --> 00:54:39.500
And it's certainly not a way of doing
1064
00:54:39.500 --> 00:54:42.650
it that would provide adequate notice to notice.
1065
00:54:42.650 --> 00:54:45.230
So what does it mean?
1066
00:54:45.230 --> 00:54:50.230
It means that the provisions of Section 41 are mandatory.
1067
00:54:51.960 --> 00:54:52.793
And --
1068
00:54:52.793 --> 00:54:55.330
It could also mean in 2016,
1069
00:54:55.330 --> 00:54:58.513
nobody does those are archaic acts anymore.
1070
00:54:59.530 --> 00:55:00.602
So why would they do--
1071
00:55:00.602 --> 00:55:02.435
Well, respectfully--
1072
00:55:04.243 --> 00:55:09.243
I mean of the percentage of notarial acts that are done.
1073
00:55:10.220 --> 00:55:11.920
What fraction would you say fall
1074
00:55:11.920 --> 00:55:16.203
within the historic scope of Section 41?
1075
00:55:17.500 --> 00:55:19.540
I don't have an empirical answer to that question.
1076
00:55:19.540 --> 00:55:21.900
I know that protest still does happen,
1077
00:55:21.900 --> 00:55:24.245
and is required to happen under the UCC
1078
00:55:24.245 --> 00:55:26.522
for (mumbles) negotiable instrument.
1079
00:55:26.522 --> 00:55:27.355
But I will concede that
1080
00:55:27.355 --> 00:55:30.960
they're not major services provided by notaries today.
1081
00:55:30.960 --> 00:55:34.990
I think at most, what is important is one could reflect,
1082
00:55:34.990 --> 00:55:39.990
is a misunderstanding of the scope of Section 41.
1083
00:55:41.750 --> 00:55:43.750
But a legislative misunderstanding,
1084
00:55:43.750 --> 00:55:47.410
if that kind of an expressed assumption,
1085
00:55:47.410 --> 00:55:50.030
isn't handled the law changes.
1086
00:55:50.030 --> 00:55:51.903
The law changes through amendments,
1087
00:55:52.800 --> 00:55:57.800
and we the Peter versus Michelle case from this court,
1088
00:55:58.000 --> 00:56:01.560
which involves construction of statutory term,
1089
00:56:01.560 --> 00:56:05.790
in a way that rendered superfluous,
1090
00:56:05.790 --> 00:56:08.090
separate statutory exceptions.
1091
00:56:08.090 --> 00:56:10.850
And what the court said was well,
1092
00:56:10.850 --> 00:56:12.840
that exception was actually unnecessary,
1093
00:56:12.840 --> 00:56:15.620
because the legislature misunderstood
1094
00:56:15.620 --> 00:56:17.620
the scope of the definition.
1095
00:56:17.620 --> 00:56:22.290
Here too, at most the provisions may reflect an unstated,
1096
00:56:22.290 --> 00:56:26.820
and unexplained assumption, about the scope of Section 41.
1097
00:56:26.820 --> 00:56:29.447
But they didn't alter it, they didn't amend it.
1098
00:56:29.447 --> 00:56:31.640
And that's what they needed to do,
1099
00:56:31.640 --> 00:56:34.090
if they wanted to give it the wide scope
1100
00:56:34.090 --> 00:56:35.550
that my brother calls for.
1101
00:56:35.550 --> 00:56:37.110
But if I mean, let's assume you're right,
1102
00:56:37.110 --> 00:56:40.440
let's assume I mean, you basically say a whole lot
1103
00:56:40.440 --> 00:56:41.930
of people misunderstood because
1104
00:56:41.930 --> 00:56:44.570
they didn't recognize
1105
00:56:44.570 --> 00:56:48.020
that noting was a particular term of art.
1106
00:56:48.020 --> 00:56:49.550
So let's assume you're right.
1107
00:56:49.550 --> 00:56:53.820
If everybody basically assumed that noting was as broad
1108
00:56:53.820 --> 00:56:57.950
as your brother said, and that it ultimately
1109
00:56:57.950 --> 00:57:02.950
has come to mean, or albeit perhaps mistakenly,
1110
00:57:03.330 --> 00:57:08.330
that $1.25 is the price for all notarial acts.
1111
00:57:09.730 --> 00:57:13.020
Why can't the legislature basically adopt
1112
00:57:13.020 --> 00:57:15.787
that misunderstanding and say,
1113
00:57:15.787 --> 00:57:19.797
"Well, that's what we now intend to do?"
1114
00:57:21.320 --> 00:57:23.730
Well, I think if they had amended the statute,
1115
00:57:23.730 --> 00:57:25.540
they could have done that.
1116
00:57:25.540 --> 00:57:29.090
If they'd had reenacted the statute,
1117
00:57:29.090 --> 00:57:31.840
perhaps there would be a ratification argument.
1118
00:57:31.840 --> 00:57:33.720
But they didn't do that either.
1119
00:57:33.720 --> 00:57:35.520
They left it in place.
1120
00:57:35.520 --> 00:57:38.360
And in fact, they weren't expressly codifying
1121
00:57:38.360 --> 00:57:41.780
an executive order, which said it was not intended
1122
00:57:41.780 --> 00:57:44.433
to alter or amend the existing law.
1123
00:57:45.420 --> 00:57:49.890
So and I, again, would respectfully question
1124
00:57:49.890 --> 00:57:52.690
the premise that everyone viewed it that way.
1125
00:57:52.690 --> 00:57:55.100
The expert notary enforces,
1126
00:57:55.100 --> 00:57:58.610
the times that a notary would consult when trying
1127
00:57:58.610 --> 00:58:01.390
in good faith to comply with the law,
1128
00:58:01.390 --> 00:58:06.390
all said that these were not regulated in Massachusetts.
1129
00:58:06.818 --> 00:58:08.850
So those who understand these terms,
1130
00:58:08.850 --> 00:58:13.850
and understand regulation of, this is for notaries,
1131
00:58:13.990 --> 00:58:15.390
all came to the same conclusion,
1132
00:58:15.390 --> 00:58:18.930
and I'm not aware of any resource or notary guide
1133
00:58:18.930 --> 00:58:22.370
that my brother has cited to the contrary.
1134
00:58:22.370 --> 00:58:27.370
So your view is that even with Section 19 in place,
1135
00:58:28.160 --> 00:58:33.160
if I go to a notary and say,
1136
00:58:33.227 --> 00:58:38.227
"Here's my $1.25, and please notarized my signature."
1137
00:58:40.510 --> 00:58:44.193
So I guess the term of art is to signature witnessing,
1138
00:58:49.360 --> 00:58:50.717
that notary can say,
1139
00:58:50.717 --> 00:58:55.197
"Sorry Gants, $1.25 isn't gonna do it, I want $10.
1140
00:58:55.197 --> 00:58:57.417
"I refuse to do it for $1.25."
1141
00:58:59.040 --> 00:59:03.860
Yes, Your Honor, because $1.25 provision comes from,
1142
00:59:03.860 --> 00:59:06.200
of course, the end of Section 41.
1143
00:59:06.200 --> 00:59:09.740
And really every rule of statutory construction
1144
00:59:09.740 --> 00:59:11.750
would lead to that same conclusion.
1145
00:59:11.750 --> 00:59:13.893
If that notary looked at section 41.
1146
00:59:14.894 --> 00:59:16.961
And you're thinking about (mumbles) constructions,
1147
00:59:16.961 --> 00:59:19.431
the notary would apply, for instance,
1148
00:59:19.431 --> 00:59:21.020
the rule of consistent usage.
1149
00:59:21.020 --> 00:59:25.300
And would see that, noting at the end of the sentence.
1150
00:59:25.300 --> 00:59:28.210
There's a very strong assumption,
1151
00:59:28.210 --> 00:59:30.420
that it would mean the same thing as noting earlier
1152
00:59:30.420 --> 00:59:31.700
in the very same sentence,
1153
00:59:31.700 --> 00:59:33.120
which is noting the non acceptance
1154
00:59:33.120 --> 00:59:35.790
or non payment of a negotiable instrument.
1155
00:59:35.790 --> 00:59:37.400
There's another statutory cannon,
1156
00:59:37.400 --> 00:59:39.920
which is the general (mumbles) context,
1157
00:59:39.920 --> 00:59:42.550
and it's undisputed that the whole provision up
1158
00:59:42.550 --> 00:59:46.220
until those last 20 words, is about protests.
1159
00:59:46.220 --> 00:59:47.660
And that's reinforced by the fact
1160
00:59:47.660 --> 00:59:50.263
that it says noting including reporting.
1161
00:59:51.760 --> 00:59:55.260
There's no notices for witnessing and signature.
1162
00:59:55.260 --> 00:59:58.123
That makes sense but only in the protest.
1163
00:59:59.018 --> 01:00:00.868
You have the emission of subtle terms
1164
01:00:01.740 --> 01:00:06.240
that I still haven't heard anything
1165
01:00:06.240 --> 01:00:09.440
for the proposition that noting means all notarial acts.
1166
01:00:09.440 --> 01:00:12.320
That notarial act is itself a defined term.
1167
01:00:12.320 --> 01:00:15.040
And then we have the rule against superfluity.
1168
01:00:15.040 --> 01:00:17.027
A bunch of other cards within 41,
1169
01:00:17.027 --> 01:00:19.890
the charge for protest is higher.
1170
01:00:19.890 --> 01:00:22.570
So if this is a cost cutting cap, or fee cap,
1171
01:00:22.570 --> 01:00:25.620
it rendered the fee cap just before irrelevant.
1172
01:00:25.620 --> 01:00:29.830
So I think you could teach a class in legislation
1173
01:00:29.830 --> 01:00:33.400
on this case, 'cause it's so many different rules
1174
01:00:33.400 --> 01:00:34.887
of statutory construction, including the rule
1175
01:00:34.887 --> 01:00:37.150
of lenity come into play, but they all pointing
1176
01:00:37.150 --> 01:00:38.090
to the same direction.
1177
01:00:38.090 --> 01:00:41.240
That noting is a term of office, is only
1178
01:00:41.240 --> 01:00:43.010
in this context relevant
1179
01:00:43.010 --> 01:00:44.860
to protest non negotiable instrument.
1180
01:00:45.840 --> 01:00:47.160
Okay, I see no further questions.
1181
01:00:47.160 --> 01:00:49.467
Any other Justices have anything else?
1182
01:00:50.940 --> 01:00:54.660
And hearing that, that concludes our argument in this case.
1183
01:00:54.660 --> 01:00:56.410
I thank council both for their arguments,
1184
01:00:56.410 --> 01:00:58.580
and for their briefing, thank you.
1185
01:00:58.580 --> 01:01:00.319
Thank you, Your Honor.
Thank you, Your Honor.
1186
01:01:00.319 --> 01:01:01.319
Thank you.