-: SJC-12769, Kevin Richardson second,
V, The UPS Store, Inc. and another.
-: Okay, now I invite Mr. Brown
on behalf of Kevin Richardson to speak.
-: Justices of the Massachusets Supreme Court.
MGL, chapter 262, regulating the fees
of certain officers is
and has always been a consumer protection statute,
implementing the unambiguous directive
of the Massachusets Constitution,
prohibiting the use of public offices for private profit.
To this end, the legislature is always strictly limited
the fees that public officers can charge
in the execution of their public duties.
And as those duties have evolved over time,
the legislature, the executive branch
and the courts have all unambiguously applied fee
limitations to every official act by a public officer.
And have no instance countenance the use
of public office for profiteering
in the manner advanced by defendants today.
For the defendants to be right in the novel interpretation
of chapter 262, everyone else who has looked
at the statute from the legislature,
to the executive branch, through the courts
thus far has to be wrong.
That noting notatrial attestation,
noting the witnessing of an event,
is only applicable to the protest of commercial paper
is an idea positive for the first time as a theory in
this case, and not supported
by any authority, secondary or otherwise.
The legislature's 2016 amendments
to chapter 222 directly recodify fee limitations
and an act entitled,
an act regulating notary public to protect consumers.
And in doing so ratified both
the prevailing section 41 prohibition against charging more
than $1.25 for any notarization,
and the governance power to enforce the notary fee limit
at the prescribed $1.25.
Every court to touch on this subject
thus far has recognize both the power of the governor
to regulate notary's
and explicit fee limitations set by section 41.
The Superior Court has aptly stated,
it is contrary to Massachusetts law and public policy
for a private entity to aggregate the services
of notaries public, or any public officials who exist
to provide a public good and
to sell those services as a commercial good.
In this context, section 41 can be plainly
and unambiguously read.
The whole cost of noting including
the cost of notices and recording shall
in no case exceed $1.25.
No case means simply, in no case.
And not nearly in no case involving a protest.
Defendants requested interpretation is a strange one,
and requires the artificial insertion of words
that do not exist in the statute,
and an inexplicable assertion of legislative intention
to allow the use of public office for private profiteering.
If the plain meaning of Section 41 is not clear enough
for defendants, the statute sets
a further express free limitation through Section 43,
which limits notary fees to those fees set
for Justices of the peace for like services.
Fees for acknowledgments of deeds is set at 25 cents.
And the legislature has clearly equated the acknowledgement
of deed, with the acknowledgement of other instruments.
(hammer pounds)
I invite questions, your honor.
-: Thank you Justice Lenk.
-: Yes, I was wondering what you thought of the amicus brief.
-: I thought it was extremely well done.
And it set out the history quite accurately.
That the fees of this of public offices
have always been limited,
and that's always been the intent of the statute.
And no instances of this as the Commonwealth ever intended
to allow public officials to charge whatever
they want for their public services.
That would be to the extreme detriment
of the public that they serve.
-: In other word you adopted the historical analysis
of the amicus brief.
-: Absolutely do.
-: Alright, thank you.
-: Yes, Gaziano.
-: Just a question about
the executive order by Governor Romney.
I think, so to speak died on the vine.
And there was a reference in the brief into chapter 289
of the Act 2016 that rescinded it.
I take it that that rescinded the executive order,
and there was no further legislative pronouncement
on this issue.
-: Well, the legislature,
they rescinded the order
because they explicitly gave the governor
the statutory authority
to recognize his statutory authority.
To regulate and set fees for notary public.
That's in, I believe, Section 16 of Chapter 222.
-: Okay, that was the only question I have.
Thank you very much.
-: Justice, Lowy.
-: Yes, thank you.
Mr. Brown, you're not gonna be surprised
with my questions, which involves statutory analysis.
Section 41 at the beginning
of the statute it lists the events of notarizing.
That the fee applies to, and includes the cost of protests,
the cost of noting, recording and notices.
And then you go to Chapter 222, Section One,
which defines the act for notary,
and refers to all acts of a notary public,
including presumably, witnessing signature.
So why isn't the analysis correct
that witnessing a signature would fall
within the definition
for notary public under 222, Section One.
And section 41 is limited to the list protests cost
of noting, for example.
Because the word in no case.
If the legislature wanted to, noting
in both sides admit that noting
is merely an act attestation,
it's the witnessing of an event.
And the notary makes his minute that he's witnessed an event
and it becomes a an official witness
of an event that has import in the courts.
So the legislature could have easily said,
in no act of protest, in no case of protest,
shall the cost of noting be greater that $1.25.
That's not what it says.
It says, in no case.
That is referring back to the beginning of the statute.
After as follows this universal events
to which presumably applies.
-: I'm not sure I understand the question yet.
-: Well, for the protest fulfill is exchange,
order, draft, or check the non acceptance,
non payment or promissory note.
I won't keep on going,
but it list all the events to which Section 41 applies.
And there's more to act as a notary public
than is listed there.
And you have the definition of that in Chapter 222.
So the question is whether or not that last phrase,
in no case is referring to the list
of events Section 41?
-: Now, I guess the answer that is no.
That in no case, means in no case
that involves an attestation.
And I think it's fair to say, no case simply means no case.
And all the world has interpreted,
in no case that noting as to apply
to all acts of attestations.
From the governor, to the legislature when they ratified it.
And you can see that when they exempted absentee ballots
from the limitation set forth in Chapter 41.
Which the defendants only explained away
as having the legend the legislature must
have misunderstood their own statute.
So it doesn't make any sense from the history
of the statute, and the way the legislature has treated
it in the way that governor is treated it,
and the way the courts are treated it.
And even in the WIBA, the case that I cited,
I quoted does Justice McCloud.
The entire Real Estate Bar Association stipulated,
which is the most prodigious accumulation of notaries.
They all accepted that that limitation
on noting applied to all attestations.
And Justice, even if you don't get there through
that definition of noting, when you go to Section 43
for like for services,
acknowledging the deeds and other instruments,
that's limited to 25 cents.
-: Okay, thank you.
-: Ms. Budd.
-: Hi, good morning.
Let me ask you about your reading the word noting as
all acts of a notary public.
Can you tell me what that is based on?
-: It's based on the commonly accepted interpretation.
That's evidenced by the legislature
and the governor in the courts so far.
And it also the plain dictionary meaning of noting,
to make a note.
And also from the case law that both the defendants
and I have cited to, that noting is an attestation.
Noting a protest is completely different from noting.
Noting is merely the official witnessing--
-: Sorry, just a second.
'Cause what I'm trying to do is figure out I mean,
just trying to figure out this section here.
And it does talk about noting earlier
on in the section right, it says,
"For noting the non acceptance
"or non payment of a bill of exchange."
And it goes back to, that's referring back
to protesting negotiable instruments, right?
Am I right about--
-: Yes, yeah, yeah.
The first section talks about recording notices,
and actually drawing up the protest
and all the fee limitations.
So it's for commercial paper worth, more than $500,
you have a limitation on actually drawing the document
that says, "Hey, we we protest
"this dishonor, and that's $1."
And then-- -: Right, and so I'm focusing
on the portion of the section that talks
about noting the non acceptance,
or non payment of a negotiable instrument.
And that has a particular meaning.
Is that correct?
-: Yes, well note, yes noting that particular document
is specifically limited, you can see
it's specifically limited to I believe, 75 cents.
-: Yes, and then so I'm trying to figure
out why we should assume that
when noting is mentioned again,
further down in the same section,
why we should assume that they're they're talking
about any type of notarization?
When the first time they mentioned it
they're talking about a particular type of noting,
or noting is used sort of as a term of act.
Why shouldn't assume that it's been used
as a term of art the second part?
-: Because of the words in no case.
So in no case has been taken by the courts so far,
and by the legislature in the governance,
the executive branch,
to mean applying to every case where
there is a noting of a document of any kind.
So any type, that has been fairly interpreted
as being replying to the attestation
of any type of document.
And there's nothing to indicate to the contrary,
and there's a tremendous wealth of historical evidence
to support that interpretation.
And know-- -: Please show me,
because I understand that it's supposed
to be a consumer statute,
and you're supposed to make sure
that you're regulating the amount charged,
but I'm just trying to figure out exactly
why we should say that noting
in this section it engulfs everything.
And I understand that other other entities
have interpreted it that way,
but can you point to anywhere where the SJC has?
-: No, well this is the first time up to the SJC.
And I've already listed the lower court cases.
Well, there was one instance where Justice Leah Coss
had a dissenting opinion in the Queen case,
he referred to the fees being limited by section 41--
-: But that wasn't the issue in that case, was it?
-: It was not, but it Just goes to show,
I mean, it's certainly clear evidence
that the bulk of the world, including Justices
in the Supreme Court, interpreted
that noting as meaning exactly
what we are saying that it means.
In that instance, really this discussion is what,
were trying to define the intent
of the legislature when they pass this statute.
And the only way to define it is really
to look at what was commonly accepted,
the meaning of that word was commonly given.
And all you can look as to the general population,
the courts, the governor's office,
in the legislature itself.
And of course, there's always
the plain dictionary meaning of noting.
-: Well, I guess I'm wondering whether
there is not a difference between noting
and the term Notarial Act,
which I know is is used elsewhere
in the statutes as what you want noting to mean.
Well notarial act is broader than noting.
-: Oh okay, tell me tell me about the difference.
-: Well for example, notaries can draw up a protest.
Now a protest, that's a notarial act.
But that's not that's different from noting, in that--
-: And noting (crosstalk).
-: I'm sorry, Your Honor.
-: That you said earlier that noting is just making a mark.
-: Noting is the attestation,
that is the official attestation
of the notary where he says,
this is what happened on this day, and I so declare it.
And signs his signature, and puts the date it happened.
That gives his official witness imprimatur,
that that event actually happened.
But, for example, the protest is a large document
where it explains that, here is the there was this note,
it was presented to the debtor,
the debtor dishonored it, and the holder
of the note protests that dishonor.
And that's all written, and it also informs all the parties
that they're going to be held liable in the loan.
And that had important significance for proceeding
with a case to enforce that note back in those days.
So that is a different type of document.
So, notaries do more than just attestation.
-: Okay, thank you.
-: No, no, no.
Justice Cypher.
I just also want to say that I found
that both brief very interesting,
and who would think that this would be so fascinating.
Also, that you actually answered one
of my questions already, when you answered Judge Budd.
I just wanna make sure I've got it right.
You're saying that if we adopt your approach,
we'll be consistent with the majority
of the other state, both (mumbles).
-: Consistent with the,
well, when you say my approach,
I'm not sure what you're referring to Justice,
if mean that--
-: No, I mean your definition of noting.
-: I don't know, I haven't examined every
other state definition,
but I think it was commonly accepted in the case.
The ancient cases cited by both sides
that described noting as an attestation
or witnessing of event, that's accurate.
-: And we say one of those is the supreme court case?
-: I believe it was a New York case, Allen,
I'm not sure, Allen was a New York Supreme Court case.
I think we both, they decided to it,
and it has a description of what noting
is as being the attestation of the notice.
-: Okay, there's no United States Supreme Court case?
-: I don't think so, yes.
-: Okay, thank you.
-: Justice Kafker.
-: So I got a series of questions about,
so let me start with the subtle expectations.
I have a vague recollection that
when Governor Romney announced this executive order,
there was a giant howling out there.
Was there a change when he did this?
I read your brief it sounds like it was settled
that Romney was just doing what had been done in the past.
But I remember a real reacting to this.
Is that correct?
Am I misremembering?
-: I don't remember a real reaction.
I mean, as far as I know,
in the practice,
of everything that has been looked at in the practice
of the real estate fire,
to the practice of all notaries generally,
they have accepted the limitation of $1.25
as being the limitation expected.
-: Before Romney's executive order,
was that whatever he was charging out there,
-: I believe so, yes-- -: Or was that--
-: I can only speak from my personal experience as a notary.
And that has always been my experience as a notary,
that the limitations of $1.25.
It's been around, since I've been practicing law.
That's been the accepted limitation,
but it wasn't invented out of whole cloth.
I remind the Justices that every notary,
to become a notary, takes an oath.
And for the period described in my complaint,
all the notaries had to take an oath, to sign an oath,
that they would not charge more than
that fee limitation, and that they would they abide by--
-: They take an oath saying,
they say they take an oath that they shall not charge
for any of their services more than what's in Section 41?
Or that they shall comply with their statutory requirements?
-: Both Your Honor, because they,
during the period my complaint,
they took an oath to abide
by the governor's order specifically.
Which sets forth that you can't charge more
than the fee limit set in Section 41.
And that's an exhibit to (mumbles), to be a reply brief.
-: And so we've got notarial act or protesters.
there are other notarial acts besides protesting?
-: There are many, protesting is one notarial act.
There's acknowledgments.
It's really does involve all acknowledgments.
I mean these terms in practice, really refer
to the active, always kind of refer to the act
of a notary providing an official witnessing of an event.
That's chiefly what the notary does.
so you can go before a notary--
-: I'm confused though.
So is there a third category of things they do,
acknowledgments that are separate from noting
and protesting or
is acknowledgement the same thing as noting?
-: Well, you see the words attestation and acknowledgement,
they're all used relatively interchangeably,
because they're all fundamentally the same thing.
Then came before me, so and so, and did this,
on this date and time, and I witnessed it.
And that's what a notary does.
And the notary is an official witness
that's given special credibility in the courts.
-: So that every,
I just wanna make sure.
You say all noting, which I take it
to me in all acknowledgments,
everything but protests are $1.25, and protests are $2.
That set out in a different (mumbles) I take, right?
-: Yes, well, protests in,
well they present the limit for all of the aspects
of protest, including the noting at $2
if the commercial paper was more than 500,
and I think at $1.50 if the commercial paper
is worth less than 500.
So there is-- -: Do you know
which statute is that in?
Where does the protest dollar amount will appear?
-: That's in Section 41.
The first part, up until we get to the part in no case,
the first part is talking chiefly about commercial paper,
and the disarmament of commercial paper.
There is this whole process in the 19th century,
that a creditor and go through in order to enforce,
at that time a protective instrument against the debtor.
And the notary ended up playing an important part,
because if they were an official witness to these events.
You had to present the notes--
-: Then I get confused about what that means.
What last sentence, including recording
those shall in no case exceed $1.25.
It's obviously, it sounds like
in no case except for ones described above, or.
'Cause you just said that $2 is allowed
for noting in the certain types of commercial paper, right?
-: Well, the $1.25 limitation
on noting is just for noting.
Whenever you take it on its face,
whenever a notary does a noting,
they can't charge more than $1.25 period,
except above when they note,
approaches a crucial part paper.
They can charge 75 cents.
But no event for anything, can they charge more than $1.25.
So period, so any-- -: I'm confused 'cause you said
they can do $2 for something, right?
-: No, they can do $2 as an aggregate limitation,
when they're actually drafting a protest,
which is one document.
Then they have to note, do an attestation the protest,
that they officially witnessed it.
Then three, they record that protest.
And four, they have to give notices.
Back then, once you wrote up the protest,
you have to send it off to the debtor,
and I'm not sure what else had to get notice of it.
But you had to give all the parties notice of that protest.
So there was a whole process involved.
Both the recording, giving of notice,
the drawing of the protest, and the noting of the protest.
Those are four things.
And they set a fee limit for all those things at $2.
-: And when they wrap the protest,
that's more than just stamping the thing,
they've got to do something more significant, is that right?
Yes, you have to draft a whole document,
and you have to describe the event,
and then you have to advise everybody
they're gonna be held liable for the dishonorment.
-: Okay, can I ask one last thing?
You will lie on the Secretary of State.
I was just reading according there, as a notary,
you are a public servant should be able,
excessive charges could result
in complaints to the Governor's Council.
I'm just gonna say, I'm just looking at this.
According to the statute,
notaries make charge no more than $1.25
for noting, and recording a document.
No more than $2 for protesting commercial papers.
And notary you're a public servants,
should be able to perform a public service
at a reasonable cost.
Why would they add that, if everything's so defined?
Why did they put that in there?
-: Because it's been determined by the Governor's Office,
and so by the executive branch,
and by the legislature I'm asserting
that $1.25 was the reasonable cost.
Look, just because the Secretary
of State used the words reasonable cost in that instance,
it doesn't vitiate all the very express fee limitations
that are set forth in Chapter 262, including,
"Hey, nobody's contesting that you can charge more
"than 25 cents for the acknowledgement
"of a deed for example."
That's very precisely laid out in Section 262.
And then in another six section,
the legislature gives the power to notaries
to take acknowledgement of deeds and other instruments,
which it's fair to say
that the legislature equates acknowledgement of deeds,
with the acknowledgment of other instruments.
And in fact in practice it's the same,
then personally appearing before me so and so,
acknowledged the foregoing to be his free act indeed.
That's what it always says.
The fee is really limited for those instances,
the vast majority to 25 cents.
But it has been interpreted over time as a $1.25.
If you're within that, that's the catch all outer limit.
-: Thank you, that's all I've got.
-: This is Chief Justice Gants.
I wanna turn you to chapter 222, Section 19.
And it say that notary public shall perform a notarial act
for any person requesting such act,
who tenders the fee provided for
in Section 41 of Chapter 262,
or any other general or special law or executive order.
And then it says, and that's of course,
reasonably that the notary act
is unlawful, whatever else.
Is it your view that that essentially,
regardless of what, I mean even if your brother is right
as to what was meant in Section 41,
that it may have been limited to noting?
That this expands its scope to include all notarial acts?
-: Yes, absolutely.
-: Does this also mean that the governor
by executive order could increase the $1.25?
Does this give the governor
of the legislative authority to increase?
-: Well yeah, well it's specifically mentioned,
well we're talking about the new statute
that was passed in 2016 Your Honor?
-: Right. -: Yeah, so yes,
the statute specifically gives
the governor the power to (mumbles).
-: So if you're obligated to perform a notarial act,
if somebody gives you the $1.25,
then you're effectively saying that the legislature
with regards to what they did in 1830,
in 2016 has essentially said Section 41
is to be the price for all notarial acts.
Is that what your arguing?
-: I believe so.
Yes, Your Honor.
The new statute is in such.
-: Was there any, I don't know the history
of this notary public are a substantial group
with considerable lobbying power.
Is there any legislative history with regard to 222,
Section 19, or the entire set of statutes
that were passed as part of the acts of 2016,
which would shed light on this?
-: No, Your Honor, well the new chapter 222,
really it codified the executive order 455.
'Cause everything that was
in 455 was essentially implemented.
If you look at 455, and you look at the new statute.
It implemented chapter four, the executive order 455.
So it's, the new Chapter 222
is more expansive and more precise, actually.
-: And that's the statute which, same statue,
which then made it a crime.
-: I'm sorry, Your Honor.
-: That's the same statute which made it a crime to--
-: Yes, that is the same.
It is now a crime to violate the terms
of the notary statute, it was not before.
-: It's only a violation of this chapter.
So it's a violation of chapter 222.
Not necessarily a violation of 262,
except to the extent that it's incorporated in 222, correct?
-: Yes, I agree, Your Honor, exactly.
-: And now that the $1.25 was established, what 1830?
-: Actually was, the catch all was,
the original statute did not have the catch off.
And then though the wording was changed,
and it was first passed in 1836 with respect to protests.
And then so all of protesting was actually covered.
And all the costs of protesting were actually covered.
That's an important point.
The legislature decided to go back, and add a catch on 1839.
And so why would they do that if they weren't many meaning
to catch noting and any document,
they had already covered all the various costs
of protests with extreme specificity.
From notices, to recording, to the noting,
to the overall charge for those pieces
of paper over 500, or under 500.
So they go back in 1835, and add this catch all.
And they also add the mandatory language shall,
and no instant shall.
So it was much more sweeping, and so
that could be the particularity with which
that was inserted three years after the original statute,
also suggests that they meant,
that the legislature meant
that statement to have broad import.
-: Now when about 99.9% of statutes,
which said a particular dollar figure before the Civil War,
we generally cannot even imagine
that that dollar figure would be governing today.
Why should this case be the extraordinary exception?
Well, Your Honor, it just shows how important.
The legislatures revisit this statute.
I've cited it maybe eight,
nine times over since the 19th century.
And they've purposely chosen never to raise those fees.
And not only the legislature,
including in this revisiting of the statute in 2016.
So the legislature and the governor's office,
every branch of government,
the courts as well up till today,
have really emphasized the importance
of keeping these services cheap.
Because these services are often important
to access to legal proceedings.
And they don't want the most disadvantaged,
a portion of the population,
to go without these important services.
They might be deprived to due process.
To some people, $10 doesn't make a difference,
or the $8.75 differential.
But for other people, it does make a difference.
And I think that's what this is all aimed at.
-: Alright, I have no further questions.
Any other Justice have any further questions for Mr. Brown?
-: Just one, Justice Budd.
I noticed that your brother mentions in the brief
that noting is used in a particular way here,
because it's about making sure the date
on the protest is right,
so that they can go forward with the protest
and all of that.
And he cites several different sources for
that particular meaning of protest.
And I was wondering if you agree with that meaning,
but you just are saying that
it's different in the last sentence of Section 41?
Or you don't agree with that meeting at all?
-: I disagree that noting in this instance,
is limited to the, the application
of zoning this is limited to noting protests only.
Note, their argument is that noting only refers
to the protest of commercial paper,
and that this court is to ignore the words in no case,
or insert the words that it means
in no case of protesting commercial paper.
I do agree in those cases that they cite you.
I do agree that with the definition of noting,
as being an attestation,
but there's nothing in those cases that says
that attestation, a notary's attestation or noting,
is only used in an instance of protesting commercial paper.
That's a very, very important distinction.
Noting is an attestation, that is the general meeting.
And those cases say so.
There is no case that says,
"Oh, the only type of document
"that is noted by a notary is commercial,
"the protester commercial paper."
That's where we disagree.
-: Okay, thanks.
-: Any further questions?
Mr Brown, thank you.
And now we'll hear from UPS Stores.
-: Thank you, Justice.
-: Thank you, Mr. Chief Justice,
and may it please the court.
Joe Palmore here on behalf of the UPS Store.
This is a statutory construction case.
So I'd like to make four points about the relevant statute.
-: If we please, before we do that,
I hear some more crackling.
If there's anybody who's on speaker,
can you take it off speaker,
put it on mute so that we can hear Mr. Palmore better.
And that may be a little bit better.
I'm sorry, you had four points, Mr. Palmore.
-: Yes, the statutory construction case.
So I'd like to make four points
about the relevant statute,
through statutory interpretation.
These points show that contrary
to Mr. Richardson's arguments,
Massachusetts law does not cap the fees
for all notarial acts at $1.25.
At the heart of this case in Section 41.
And as Justice Louis and Buds questions reflected,
that provision provides a detailed schedule
for notary services related to the protests
that dishonored negotiable instruments,
and only for those services.
The phrase at the end on which my brother relied,
the whole cost of noting, including recording and notices,
is the shorthand reference to the phrase
that appears earlier in the very same sentence.
Noting the non acceptance,
or non payment of a bill of exchange,
or other negotiable instruments.
That is consistent with the numerous 19th century cases,
and secondary sources we cited in our brief.
Noting in Section 41, does not mean all notarial acts.
In fact in the notarial act
is a separately defined term under Massachusetts law,
and it is broader.
Second, Section 43 does not apply here.
That provision and its references to like services provides
that when public officer A,
provides the very same service as public officer B,
public officer A is subject to a fee cap for that service,
even if the relevant fee cap statute
is expressly addressed only to public officer B.
In any event, even if Section 43 incorporates
the similarity standard, it would not be satisfied here.
The specialized function
of noting a dishonored negotiable instrument,
is not similar to the simple act of witnessing a signature.
Third, the 2017 notary law did not amend Section 41
or 43 to expand their scope, nor did it reenact them.
So this case turns exclusively
on the long standing meaning of those pre existing statutes.
Even if the 2017 legislature, or Governor Romney before it,
made an unexpressed assumption about the scope
of Section 41, that couldn't alter it meaning.
Statutes change through amendment,
not the subjective thoughts of elected officials.
Fourth, and finally, the rule (mumbles)
and bedrock fair notice principles compel the same results.
For the reasons I just gave the traditional tools
of statutory construction, you'll put one answer here.
But even even if there is any ambiguity
on the scope of these statutes,
the fact that they are criminally enforceable,
means that ambiguity must be resolved to narrow, not expand.
Mr. Chief Justice, I welcome the courts questions.
-: Okay, let's turn to Justice Lank.
-: I'm gonna ask you the same question I asked your brother,
which is what do you think
of the amicus brief history (murmurs)?
-: It an interesting historical treatment
of notary laws during the colonial era.
I don't think it's of any particular relevance to this case.
The ME cites no evidence that the legislature in 1830,
meant to codify or incorporate those colonial statutes.
And if anything, I think they cut the other way.
Because what Amicus argues,
was that the colonial statutes prescribed fees
for all quote on quote writings.
The legislature in the 1830s did not use that term.
Instead, it adopted in its provision related
to the protest of negotiable instruments,
and the noting of negotiable instruments,
which is, in this context,
nothing more than a preliminary step in protest.
So I think amicus brief is interesting as a piece
of legal history, but it's not
at any particular relevance here.
-: You don't think it's wrong in any respect though?
-: I don't, except perhaps irrelevant, in our favor,
in that it shows that there was perhaps a broader statute
that's been used earlier that regulated the fee
for all writings,
but the legislature chose not to adopt that.
And instead it adopted this targeted provision.
So to the extent that the amicus brief is relevant,
I think it supports out (murmurs).
-: Okay, Thank you,
-: Justice Gaziano.
-: I have no questions, thank you.
-: Justice Lowy.
-: Yes, tell me now that this has criminal implications.
How does the rule entity come into this analysis?
-: Well, I think it comes in as a backstop Justice.
I don't think you need it here, because I think that,
for the reasons that we go over in the brief,
and that I spoke about briefly before.
The statute is quite clear that it doesn't extend
to all notarial acts.
In this context, it applies only to noting commercial paper,
in this context of a protest.
But to the extent that there is any ambiguity
on that question, the rule of lenity
and basic fair notice principles would require
it to be construed against this application,
because the legislature
has now attached criminal penalties to the statute.
And even though this is a civil case,
the statute can mean only one thing.
And this court has explained in the Doe case that we cite
in our brief, that the rule of lenity applies,
even in a civil context when you're dealing
with a rule regulating primary conduct
that is enforceable civilly and criminally.
-: And of what input is it, that the governor
and perhaps the secretary of state
have a different view than you?
-: I don't think it's of anything interest
to the extent that they do.
And I don't really think that they do,
or at least if they did, it wasn't clearly expressed.
I think the executive order
from Governor Romney was quite explicit.
It said right up top that
it does amend or alter preexisting law.
It took Section 41 as it existed
on the statute books at that time.
And the ranking the mechanistic guidelines
with list Your Honor is referring to.
If the secretary of the Commonwealth guidelines,
they actually again put a blog position
for the reasons that Justice Kafker mentioned.
They simply take Section 41 fee cap for protest and noting,
without elaborating on what those terms mean.
But then they go on to admonish notaries
to charge only reasonable fees,
that reasonableness standard would be unnecessary
if all notarial acts were already
fee capped at $1.25 as my brother argues.
-: Thank you.
-: Justice Budd.
-: What are we to make of the fact that the title
of the section is notaries public enumeration of fees,
and then Section 41 says the fees
of notaries public shall be as follows?
And according to your interpretation of this,
it only talks about protesting negotiable instruments which,
do we even do this anymore?
I mean, is this even a thing?
-: It is for foreign negotiable instruments Justice.
-: Okay, but why-- -: And this--
-: Yeah. -: So in the 19th century,
these were the principal acts of notary publics.
And we spoke to the opinion of the Justices
in our brief for that proposition.
So at the time this statute was adopted,
these were very important acts that a notary provided
to the public, and it stands to reason that
that's where the legislature would
have targeted, its a price regulation.
And again, the title that saying that the fees
for notary publics, and the fees for notary publics shall
be as follows, doesn't tell you anything unless
you read on and you see what the enumeration of the fees is.
And I would point out that the same analysis applies
to Section 16 and 19 of the 2017 notary statute.
That my brother said might have changed,
or made the $1.25 the general applicable.
That's not correct.
All those statutes provide is that the cap quote provided
in Section 41 apply to the notarial acts enumerated
in Section 41.
And section 41 of course includes a detailed schedules,
use of different services related to negotiable instruments.
And you have to know which service you're talking about,
to see which fee cap applied.
And it wouldn't make sense to say that the fee cap
in Section 41 apply to all the notarial acts given 41
has if I count them up, six different fee caps.
You can imagine an analogous situation as a (mumbles)
that a consumer shall not purchase a good
without paying the sales tax provided for in the tax code.
That would not make all good subject to sales tax,
you still have to go to the tax code to determine
which goods were taxable, and which goods were exempt.
And so to hear that provisions of the notary act 16 A
and 19, require compliance with a fee schedule
in section 41, but they don't change that schedule,
you still have to look at section 41
to determine what is covered and what is not.
-: And so then a notary could charge really anything he
or she might want to charge, for anything outside
of protesting negotiable instruments.
-: Well there's no fee cap, the Secretary point
that says that the charges must be reasonable.
But that wouldn't make Massachusetts unusual.
If you look AA volume three page 15,
there's a chart there of states and their handling
of notarial acts, and price regulation of them.
And there are a number of states, in fact say,
a notary may set their own fees.
And I will also point out that
that chart lists Massachusetts, among them.
My brother said that the whole world has always
viewed these notary statutes his way,
but that's not correct.
There experts notary bodies,
people whose job is to study these regulations,
say that fees are not regulated in Massachusetts
for the notarial act beyond protest, or noting.
A protest, and those documents can be found
at volume at the appendix,
page 14, page six, page 88,
they predate and post date the 2017 amendment.
-: I'm sorry, could you repeat.
It is kind of crackly.
Can you just repeat where you would find
that in your appendix?
-: Yes, it's volume three.
Just there page six, page 14 and page 88.
-: And about the chart that you mentioned?
-: The chart is on page 15, of the same volume.
-: Thank you.
-: Justice Cypher.
-: I have no questions, thank you.
-: Justice Kafker.
-: I'm just, before you start, are you on a speaker phone?
'Cause you're very hard to hear.
And I can hear everyone else clearly.
-: I'm not on the speakerphone, I apologize for that.
I will try to (murmurs).
-: Okay, yeah so I guess back to settled expectations.
Was Romney's executive order,
did that unsettled expectations.
I just, I'm trying to understand,
what the world was before that executive order.
Was it exactly the same?
What did it mean?
-: I think the world and the relevance
since here was exactly the same.
And you don't have to take my word for it.
The Executive Order itself says that.
It says you can alter or amend existing law.
So it took the fee cap that has long existed in Section 41,
and it reminded the public,
and it reminded notaries that they are mandatory.
But didn't focus there still,
and it didn't change Massachusetts law.
And then fast forward to 2016, 2017.
When the legislature amended the statute,
it simply codified that executive order.
Again, the executive order was said
it did not intend to alter or amend existing law.
If the legislature in 2017 had wanted
to impose $1.25 fee cap on all notarial acts,
it easily could have done that
with a one line provision saying,
"The fee for all the (mumbles) is $1.25."
Notarial acts is a defined term,
in Section One of the new statute.
That section actually with a number of notarial acts,
they're not interchangeable as my brother suggests.
They all have different requirements.
The legislature couldn't provided this fee cap,
if they wanted to.
(mumbles) would have provided fair notice,
for that now criminally enforceable provision,
but it did not do so.
-: So just you can leave some example,
I understand the one that costs 25 cents,
I understand would cost $2.
What are the ones that are, give me some descriptions
of common notarial acts that are only subject
to the reasonable fee requirement?
-: Sure, Your Honor.
So, if you look at,
in our statutory addendum, we reproduce Massachusetts code,
Section, Chapter 222, number one definition.
And it lists, acknowledgement, affirmations,
a whole bunch of notarial acts.
And it also defines notarial act,
as any act that a notary public is empowered to perform.
I think the last one on the list is signature witnessing.
This is I thin 72 of our agenda.
And that's the kind of common thing
that we think of as notarizing.
Where you go in, and you sign a document,
and the notary stamp on it.
That's a defined term in the statute.
And that's what Mr. Richardson,
the plaintiffs in the underlying case here, obtained.
And so, Massachusetts has not chosen
to regulate the price for all of those provisions,
it lets in place, the section 41,
which regulated the price only for the very,
what were a very important services this century.
And the provision was adopted in the 1830s,
$1.25 was actually a lot of money at that point.
But there's no way--
-: Do all these here--
-: Yes please go ahead.
-: Do all these signature witnessing
are just subject to reasonable market prices then?
-: Yes, Your Honor, as many as a number
of other states have done.
But of course, I would point to the facts of this case
aren't particularly relevant,
to the extent that the charges that are reflected
in the record here, show that we're talking about a $10 fee.
Or when you include the fee for that notarization
and service fees, so we're not talking about,
exorbitant amounts of money.
-: Right, okay, that's all I have, thank you.
-: Chief Justice Gants, let's assume for the sake
of this argument, that your argument
in your brief is correct.
That in 1836, the term noting meant,
was a quite defined term, and was referring
to the particular acts of protests
which are largely archaic now.
So assuming you're right, you distinguish
that there's difference between a notarial act,
which is broad, and as you note is also defined
in Section One of 222,
is based as any acts that a notary public
is empowered to perform.
Still stuck, frankly on Section 19.
Because that says a notary public shall
perform a notarial act for any person requesting such act,
who tenders the fee provided for
in Section 41 of chapter 262,
or any other general or special or executive order.
So, why does that mean, what does that not mean?
That in 2016, the legislature essentially said,
"Well, the price in Section 41, is the price
which a notary public must accept for any notarial act,
even if the definition
of noting was more limited back in 1836."
-: Because, Mr. Chief Justice, there
is not just one fee in Section 41.
They're six different fees.
So it's that reading of the statute,
which I understand my brother has advanced, could hold up.
Because one would have to look at section 41.
Turn the page to Section 41,
to see what the fees that are quote, provided in.
That's the phrase that's used in Section 19.
And when you look at the fees provided in Section 41,
there are a whole bunch of them.
There's one for protests.
There's one for recording.
There's one for noting.
There are separate fees for notices,
then there are tow aggregate fee caps
for the whole cost of protests,
and the whole cost of noting.
And so the legislature,
this would have been an incredibly awkward way
for the legislature to (mumbles) one piece of that statute,
that has six different fee caps,
somehow broadly enforceable.
Even in the context of a stack with itself,
adopted a definition for notarial acts, not noting.
That's not the way
that the legislature would have gone about it.
And Justice Scalia famously said,
"Legislatures don't hide elephants in loop holes."
And I think this would have been, an elephant of broad,
wide ranging price regulation,
in a mouthful of this your cross reference,
that isn't the way the legislature would have done it.
And it's certainly not a way of doing
it that would provide adequate notice to notice.
-: So what does it mean?
-: It means that the provisions of Section 41 are mandatory.
And --
-: It could also mean in 2016,
nobody does those are archaic acts anymore.
So why would they do--
-: Well, respectfully--
-: I mean of the percentage of notarial acts that are done.
What fraction would you say fall
within the historic scope of Section 41?
I don't have an empirical answer to that question.
I know that protest still does happen,
and is required to happen under the UCC
for (mumbles) negotiable instrument.
But I will concede that
they're not major services provided by notaries today.
I think at most, what is important is one could reflect,
is a misunderstanding of the scope of Section 41.
But a legislative misunderstanding,
if that kind of an expressed assumption,
isn't handled the law changes.
The law changes through amendments,
and we the Peter versus Michelle case from this court,
which involves construction of statutory term,
in a way that rendered superfluous,
separate statutory exceptions.
And what the court said was well,
that exception was actually unnecessary,
because the legislature misunderstood
the scope of the definition.
Here too, at most the provisions may reflect an unstated,
and unexplained assumption, about the scope of Section 41.
But they didn't alter it, they didn't amend it.
And that's what they needed to do,
if they wanted to give it the wide scope
that my brother calls for.
-: But if I mean, let's assume you're right,
let's assume I mean, you basically say a whole lot
of people misunderstood because
they didn't recognize
that noting was a particular term of art.
So let's assume you're right.
If everybody basically assumed that noting was as broad
as your brother said, and that it ultimately
has come to mean, or albeit perhaps mistakenly,
that $1.25 is the price for all notarial acts.
Why can't the legislature basically adopt
that misunderstanding and say,
"Well, that's what we now intend to do?"
-: Well, I think if they had amended the statute,
they could have done that.
If they'd had reenacted the statute,
perhaps there would be a ratification argument.
But they didn't do that either.
They left it in place.
And in fact, they weren't expressly codifying
an executive order, which said it was not intended
to alter or amend the existing law.
So and I, again, would respectfully question
the premise that everyone viewed it that way.
The expert notary enforces,
the times that a notary would consult when trying
in good faith to comply with the law,
all said that these were not regulated in Massachusetts.
So those who understand these terms,
and understand regulation of, this is for notaries,
all came to the same conclusion,
and I'm not aware of any resource or notary guide
that my brother has cited to the contrary.
-: So your view is that even with Section 19 in place,
if I go to a notary and say,
"Here's my $1.25, and please notarized my signature."
So I guess the term of art is to signature witnessing,
that notary can say,
"Sorry Gants, $1.25 isn't gonna do it, I want $10.
"I refuse to do it for $1.25."
-: Yes, Your Honor, because $1.25 provision comes from,
of course, the end of Section 41.
And really every rule of statutory construction
would lead to that same conclusion.
If that notary looked at section 41.
And you're thinking about (mumbles) constructions,
the notary would apply, for instance,
the rule of consistent usage.
And would see that, noting at the end of the sentence.
There's a very strong assumption,
that it would mean the same thing as noting earlier
in the very same sentence,
which is noting the non acceptance
or non payment of a negotiable instrument.
There's another statutory cannon,
which is the general (mumbles) context,
and it's undisputed that the whole provision up
until those last 20 words, is about protests.
And that's reinforced by the fact
that it says noting including reporting.
There's no notices for witnessing and signature.
That makes sense but only in the protest.
You have the emission of subtle terms
that I still haven't heard anything
for the proposition that noting means all notarial acts.
That notarial act is itself a defined term.
And then we have the rule against superfluity.
A bunch of other cards within 41,
the charge for protest is higher.
So if this is a cost cutting cap, or fee cap,
it rendered the fee cap just before irrelevant.
So I think you could teach a class in legislation
on this case, 'cause it's so many different rules
of statutory construction, including the rule
of lenity come into play, but they all pointing
to the same direction.
That noting is a term of office, is only
in this context relevant
to protest non negotiable instrument.
-: Okay, I see no further questions.
Any other Justices have anything else?
And hearing that, that concludes our argument in this case.
I thank council both for their arguments,
and for their briefing, thank you.
-: Thank you, Your Honor. -: Thank you, Your Honor.
-: Thank you.