Qualifications for candidates for municipal office, notarization of nomination petitions, and acknowledgement of circulators

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARDS. CrmFN AriOR~:t'·, Oc'Ncfl,\l. STATE OF 1\L\I"!E DEPAfi.TMENT OF THE ATTORNEY GENERAL Nay 2, 1979 Honorable Richard H. Pierce Assistant Majority Leader Maine State Senate State House Augusta, Maine 04333 Dear Senator Pierce: STEf'HEl\ L. DJA\,tOM) .JoH:. l\t lZ. PATE:Ksu:---; RuHJ-:1cr J. STOLT D[PUTY ;\TTORl'H::YS GENEF\r-\L This will respond to your written opini.on r~quest of April 5, 1979, _in which you raised several questions. You have inquired whether a candidate for municipal office must be a "qualified voter" where the municipal charter makes no reference to such a qualification. The answer to your ques- tion depends upon which municipal office is sought. I 'am enclosing copies of 30 M.R.S.A. §§2060 and 5351 (1978) which enumerate some of tne qualifications for certain municipal offices. As you will note, 30 M.R.S.A. §2060(3) (A) provides that ''[i}n order to hold the office .of seLectman, a pers~n must be a voter in the town in which he is elected." You have also raised two questions regarding the notariza- tion of nomination petitions under 21 M.R.S.A. §494(7) (1978 Supp.) which provides in relevant part: "A nomination pc ti tion shall be vur i fic:.d and certified as follows. A. The circulator of a nomination petiti?n shall verify by oath or affirmation before a Notary Public, Justice of the Peace or other person auth~ orized by law to administer oaths that all of the signatures to the petition were made in his presence and that to the best of his knowledge and belief ouch signature is the signature of the person whose name it purports to be and each person is a resident of the electoral district named in the petition." Honorable Richard H. Pierce Assistant Majority Leader Nay 21 1979 Pag-e t\•.ro You have inquired whether the candidate whose nominating petition is being circulated may take the circulator 1 s acknowledgement in accordance with section 494(7). Pursuant to 4 M.R.S.A. §951(1979), a notary public, 11 [w]hen authorized by the laws of this State or of any other state or country to do any official act, ... may administer any oath necessary to the completion or validity therGof." See also Greely v. Greely, 118 .Me. 491, 107 A.296(1919). Section 954 of Title 4 enumerates certain acts which a notary public cannot legally perform.l Additionally, all notaries are sub- ject to the "party to the instrument" rule. This rule is thor- oughly explained in 1 Am.Jur.2d, Acknowledgments §16 at 458 as follows: " fT] he generally accepted view is that an officer or a person otherwise legally authorized to take acknowledg- ments is not qualified to act where he has· a- financial or ben~ficial interest in the proceedings or will acquire such interest under the instrument to be acknow-· ledg·ed." See also 58 Am.J·ur.2d Notaries Public §22 at 468; C.L.T'-'leier, Anderson's Manual For Notaries Public §4.4 at 61 (2d ed~l940). A candidate for elective office obviously has a direct and significant interest in the validity of a nominating petition circulated on his behalf. In view of this interest in the instru- ment to be acknowledged, a candidate cannot act as a notary public with respect thereto. Finally, you have asked whether it would make any difference in the above example if the circulator is the candidate's spouse. "[M]ere relationship to a party does not disqualify a notary" from taking th2 acknowledgrncmts of that party. Seo 58 Am .. Jr.2d Notc:ries §22 at 468; 1 Arn.Jur.2d Acknowledgments §17 at 459. The candi- 1. 4 M.R.S.A. §954(1979) provides in pertinent part: "It .3hall be unlawful for any notary public t.o t:Flkc, tho ,lcknowl0dqGrnc~nt of zin in~-itn.:urK·nt by or to a bank or other corporation of which he is a stockholder, director, officer or employee where such notary is a party to such instrument, either individually or as a repre- sentative of such bank or other corporation, or to protest any negotiable instrum2nt owned or held for collection by such bank or other corporation, where such notary is individually a pdrty to such instrument." - Honorable Richard H. Pierce Assistant Majority Leader :·lay 2, 1979 Page three date would be disqualified fro~ acting as a notary public, n~t because of his spousal relationship to the circulator, but because of the "party to t~1e instrument" rule. I hope this informatio~ is helpful to you. Please feel free to contact me again if I can be of further assistance. RSC;srn encl.