Bartholomew v. Blevins

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0138p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LYNDON BARTHOLOMEW and LATONYA

Plaintiffs-Appellants, --
BARTHOLOMEW,

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No. 10-6352

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>
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v.

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DONALD BLEVINS, JR., LINDA POTTER,
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Individually and as Fayette County Deputy
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Clerk and Supervisor, and COUNTY OF

Defendants-Appellees. -
FAYETTE,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:10-cv-237—Joseph M. Hood, District Judge.
Decided and Filed: May 17, 2012
Before: GUY and COOK, Circuit Judges; GRAHAM, District Judge.*

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COUNSEL
ON BRIEF: Leslie Dean, LESLIE DEAN, ATTORNEY AT LAW, PSC, Versailles,
Kentucky, for Appellants. Donald R. Todd, TODD & TODD, PLLC, Lexington,
Kentucky, for Appellees.
COOK, J., delivered the opinion of the court, in which GRAHAM, D. J., joined.
GUY, J. (pp. 9–11), delivered a separate dissenting opinion.

*
The Honorable James L. Graham, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.

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OPINION
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COOK, Circuit Judge. Lyndon and Latonya Bartholomew appeal the district
court’s dismissal of their civil rights action challenging Fayette County’s refusal to
accept a photocopy of Latonya’s military power of attorney. We affirm.

I.

Latonya Bartholomew serves in the United States Air Force. According to the
Bartholomews, Latonya executed a military power of attorney designating her husband
Lyndon as her attorney-in-fact during her deployment overseas. In March 2010, Lyndon
presented a photocopy of this instrument to the Fayette County Clerk’s Office for
purposes of recording an original deed and mortgage in the county’s real property index
records. The clerk’s office rejected the copy as inauthentic and refused to record the
deed and mortgage.

The Bartholomews sued the county and members of the clerk’s office under
42 U.S.C. § 1983, claiming that the county’s rejection of the military power of attorney
violated 10 U.S.C. § 1044b. That statute sets the minimal requirements for executing
a military power of attorney and prohibits states from imposing additional requirements.
The Bartholomews moved for a preliminary injunction, arguing that the county’s
requirement of an original military power of attorney violated § 1044b’s prohibition on
additional requirements. In October 2010, the district court ordered the Bartholomews
to show cause why § 1044b compelled the county to accept a copy, and why, despite the
passage of more than two months, they could not produce an original military power of
attorney. The Bartholomews responded that they could not obtain original copies during
Latonya’s deployment overseas, and that the county’s actions put them “in a terrible
situation,” causing them to “breach . . . a loan agreement with [a] lender, . . . [and the]
inability to refinance or sell the property.”
No. 10-6352 Bartholomew, et al. v. Blevins, et al. Page 3

The district court denied the Bartholomews’ motion for a preliminary injunction,
reasoning that § 1044b did not require the Fayette County Clerk to accept a copy of a
military power of attorney in lieu of the original. In light of this conclusion, the district
court ordered the Bartholomews to explain why their claims should not be dismissed.
The Bartholomews responded by filing a petition for mandamus with this court. The
district court dismissed their complaint with prejudice for the reasons stated in its
preliminary injunction decision. The Bartholomews timely appealed. A motions panel
of this court denied their request for mandamus relief. In re Bartholomew, No. 10-6331
(6th Cir. Jan. 6, 2011). During the pendency of this appeal, the Bartholomews obtained
and submitted an original military power of attorney to the Fayette County Clerks’
Office, who recorded the Bartholomews’ deed, mortgage, and power of attorney in April
2011. Defendants-Appellees moved to dismiss the appeal as moot. A later panel denied
the motion, noting that the Bartholomews sought compensatory and punitive damages
and injunctive relief. Bartholomew v. Blevins, No. 10-6352 (6th Cir. Aug. 5, 2011).

II.

Federal-question jurisdiction extends to the Bartholomews’ § 1983 claim,
28 U.S.C. § 1331, and we have jurisdiction to hear their appeal from the district court’s
final judgment, 28 U.S.C. § 1291. We review de novo the district court’s dismissal for
failure to state a claim, Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d
295, 301 (6th Cir. 2011), asking whether the complaint “contain[s] sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

The Bartholomews’ complaint effectively asserts one claim: that the clerk’s
office violated the protections afforded to military powers of attorney by 10 U.S.C.
§ 1044b. We review the district court’s statutory interpretation afresh, starting with the
language and structure of the statute. Shearson v. U.S. Dep’t of Homeland Sec., 638
F.3d 498, 500 (6th Cir. 2011). Because § 1044b serves a remedial purpose, it “should
be construed broadly to effectuate its purposes.” Tcherepnin v. Knight, 389 U.S. 332,
336 (1967); see also In re Carter, 553 F.3d 979, 985 (6th Cir. 2009). Nevertheless, if
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the plain terms of the statute resolve the dispute, our “sole function . . . is to enforce [the
statute] according to its terms.” United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); see also
Brilliance Audio, Inc. v. Haights Cross Commc’ns, Inc., 474 F.3d 365, 371 (6th Cir.
2007). If the statutory language fails to provide a clear answer, we may consult
persuasive authority, including other provisions in the statute, different statutes,
interpretations by other courts, and legislative history. In re Carter, 553 F.3d at 986.

Section 1044b provides in pertinent part:

Military powers of attorney: requirement for recognition by States

(a) Instruments to be given legal effect without regard to State
law.--A military power of attorney--
(1) is exempt from any requirement of form, substance, formality,
or recording that is provided for powers of attorney under the
laws of a State; and
(2) shall be given the same legal effect as a power of attorney
prepared and executed in accordance with the laws of the State
concerned.
(b) Military power of attorney.--For purposes of this section, a military
power of attorney is any general or special power of attorney that is
notarized in accordance with section 1044a of this title or other
applicable State or Federal law.
(c) Statement to be included.--(1) Under regulations prescribed by the
Secretary concerned, each military power of attorney shall contain a
statement that sets forth the provisions of subsection (a).
(2) Paragraph (1) shall not be construed to make inapplicable the
provisions of subsection (a) to a military power of attorney that does not
include a statement described in that paragraph.

By virtue of the Supremacy Clause, U.S. const. art. VI, cl. 2, this statute expressly
preempts state laws concerning the proper form for powers of attorney. See, e.g.,
PLIVA, Inc. v. Mensing, ___ U.S. ___, 131 S. Ct. 2567, 2577 (2011). Citing paragraphs
(a)(1) and (a)(2), the exemption provisions, the Bartholomews argue that their military
power of attorney “is exempt from any requirement of form, substance, formality, or
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recording” imposed by the State, and thus “given the same legal effect as a power of
attorney prepared and executed in accordance with the laws of the State concerned.”
Under the plain language of the statute, we agree that a military power of attorney
meeting the minimal requirements of § 1044b qualifies for such treatment. But the
Bartholomews did not present a military power of attorney to the clerk’s office; they
presented a photocopy. Whether a copy qualifies for such protections presents a thornier
question.

The statute does not speak of photocopies, certified copies, or reproductions of
any sort. Rather, its definition provision describes a “[m]ilitary power of attorney” as
“any general or special power of attorney that is notarized in accordance with section
1044a of this title or other applicable State or Federal law.” 10 U.S.C. § 1044b(b).
Following that provision’s reference to § 1044a, we find a list of the armed forces
personnel eligible to receive notarial services, 10 U.S.C. § 1044a(a); a list of the armed
forces personnel empowered to provide notarial services, id. § 1044a(b); a prohibition
on fees for these notarial services, id. § 1044a(c); and a provision specifying the legal
effect of the notarial signature, id. § 1044a(d). This latter provision states that “[t]he
signature of any such person acting as notary, together with the title of that person’s
offices, is prima facie evidence that the signature is genuine, that the person holds the
designated title, and that the person is authorized to perform a notarial act.” Id.
§ 1044a(d).

Reading § 1044a(d) and § 1044b(b) in tandem, we understand the provisions to
impose the following minimal requirements for a military power of attorney: (1) a
general or specific power of attorney for the benefit of qualifying military personnel;
(2) notarization consisting of the notary’s signature and office title; (3) performed by
personnel authorized to perform notarial services; and (4) a statement setting forth the
protections of subsection (a). The clerk’s office effectively takes its stand on the second
element, distinguishing a copy of a notarized instrument from an original notarized
instrument. We agree.
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While § 1044b(a) “exempt[s]” a military power of attorney “from any
requirement of form, substance, formality, or recording that is provided for powers of
attorney under the laws of a State,” it still expects that a military power of attorney “[be]
notarized in accordance with section 1044a of this title or other applicable State or
Federal law,” id. § 1044b(b). The Bartholomews do not claim that they presented an
original, notarized power of attorney, or a notarized, certified copy of a power of
attorney. Their unnotarized copy thus lacks an essential element of a military power of
attorney and does not qualify for § 1044b(a)’s protections.

The Bartholomews challenge this interpretation, citing an IRS legal
memorandum, I.R.S. Chief Couns. Adv. 2005-03-001, 2005 WL 122050 (Jan. 21, 2005)
(arguing that an attorney-in-fact could correct any omissions in an IRS power of attorney
form for an absent taxpayer by filing the appropriate form and attaching “a copy of the
original [power of attorney]”); a 2004 decision of the General Services Administration’s
Board of Contract Appeals, GSBCA No. 16337-RELO; a 2001 Department of Defense
regulation, 32 C.F.R. Pt. 153, 66 Fed. Reg. 45169-01; and a Louisiana statute
recognizing the preemptive authority of § 1044b, La. Rev. Stat. Ann. § 9:3863. We
deem these sources inapposite; they neither represent Congress’s views nor support the
Bartholomews’ argument that § 1044b’s protections apply to a photocopy of a power of
attorney.

Still, the Bartholomews contend that the clerk’s office imposed an impermissible
additional requirement of form. The clerk’s office responds that it followed a general
state policy of requiring original instruments, citing an advisory decision by the
Kentucky attorney general and statutory provisions addressing different legal
instruments. Though correspondence from the clerk’s office makes no mention of these
authorities (see R. 1, Ex. C), assuming that the clerk’s office applied a policy it believed
stemmed from state law, the state entity did not add requirements of form, substance,
formality, or recording. Whether intended or not, the clerk’s office enforced the
notarization requirement imposed by § 1044b itself. Because § 1044b does not grant the
No. 10-6352 Bartholomew, et al. v. Blevins, et al. Page 7

same protections to photocopies, the clerk’s office did not violate the law by requesting
an original military power of attorney.

The legislative history does not suggest a contrary result. Section 1044b’s
protections for military powers of attorney passed as part of the National Defense
Authorization Act for Fiscal Year 1994. Pub. L. No. 103-160, § 547, 107 Stat. 1547
(1993). The House Armed Services Committee Report that accompanied the legislation
described the provision’s purpose as follows:

The past experience of service members and their dependents who
executed powers of attorney in advance of recent military operations has
shown that some states and territories have refused to honor those powers
of attorney because they were not executed in accordance with state or
territorial legal requirements. The failure to honor these documents has
created substantial hardships for military families.
This section would provide that a power of attorney signed by a person
authorized to receive legal assistance and notarized by a person
authorized under section 1044a of title 10, United States Code, to
perform notarial acts shall be recognized as valid and given full effect by
those to whom such a power of attorney is presented.

H.R. Rep. No. 103-200, at 286 (1993). No doubt, Congress intended to simplify the
process of preparing and using powers of attorney for military families, and it did so by
preempting the states’ various formalities for powers of attorney. See 10 U.S.C.
§ 1044b(a); H.R. Rep. No. 103-357, at 132 (1993) (Conf. Rep.) (detailing adoption of
§ 1044b). Yet in doing so it still retained minimal formalities, including notarization.

We further note that notarization serves an important governmental interest in
preventing fraud. “[W]hen a notary public certifies a document, he attests that the
document has been executed or is about to be executed, that the notary is confronted by
the subscriber, and that the subscriber is asserting the fact of his execution.” 58 Am. Jur.
2d Notaries Public § 28 (West 2012); see also Ira Shiflett, Goodbye to Affidavits?
Improving the Federal Affidavit Substitute Statute, 54 Clev. St. L. Rev. 309, 311–14
(2006) (discussing the authenticating features of notarization, such as truth, punishment,
identity, and witness); Michael L. Closen & G. Grant Dixon III, Notaries Public from
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the Time of the Roman Empire to the United States Today, and Tomorrow, 68 N.D. L.
Rev. 873, 874 (1992) (hereinafter “Closen & Dixon, Notaries”) (“[W]ithout
[notarization], a signature on an important document might not be worth the paper upon
which it is written. The potential for fraud would otherwise grind the business and legal
worlds to a halt.” (citation omitted)).

Notarial functions and methods have evolved over time, becoming more
ministerial and less formal. See Closen & Dixon, Notaries, 68 N.D. L. Rev. at 875–78
& n.15 (tracing development of notarial functions from the multi-purpose, legal-adviser
role in ancient Rome to the modern role of administering oaths and witnessing the
execution of important documents); see generally Unif. Law on Notarial Acts § 2(5)
(2010) (identifying notarial acts). Perhaps evocative of this trend, Congress has seen fit
to eliminate the need for notarial attestation in certain circumstances, such as when it
enacted 28 U.S.C. § 1746 allowing the use of unsworn declarations in federal judicial
proceedings. See H.R. Rep. No. 94-1616, at 1 (1976) (noting inconvenience of the
appearance requirement when the need for notarization arises after business hours or
overseas). It did not do so here, despite intending to simplify the process of executing
and using military powers of attorney. We therefore find that the clerk’s office did not
violate § 1044b by requiring the original military power of attorney.

III.

We AFFIRM.
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DISSENT
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RALPH B. GUY, JR., Circuit Judge, dissenting. Although the court
acknowledges that we are interpreting a remedial statute that “should be construed
broadly to effectuate its purposes,” it proceeds, in my view, to do just the opposite. The
time-honored principle of broad construction is avoided by a finding that the statute
itself provides a clear answer. I fully agree that the statute provides a clear answer, but
not the one reached by the court.

The statute, which deals exclusively with military powers of attorney, represents
an understanding by Congress that those in our armed forces, particularly those serving
abroad for extended periods of time, cannot anticipate every situation that might require
action on their part if they were home. An executed power of attorney is one answer to
this dilemma.

Neither the clerk who rejected the proffered power of attorney nor the court
maintain that the power of attorney was not executed in accordance with the statute.
Rather, they read into the statute a requirement that the power of attorney must be an
original. This interpretation is based on the language of U.S.C § 1044a(d): “The
signature of any such person acting as notary, together with the title of that person’s
offices, is prima facie evidence that the signature is genuine, that the person holds the
designated title, and that the person is authorized to perform a notarial act.”1 In support
of its interpretation the court states: “The statute does not speak of photocopies, certified
copies, or reproductions of any sort.” I agree, but I do not understand the omission of
any reference to “photocopies” to mean that only an original will suffice. This hardly
constitutes a broad construction.

1
The clerk’s original rejection was based on reliance on state law, which is specifically preempted
by the federal statute. No contention is made to the contrary, however, it is the litigation posture of the
defendants that because the power of attorney did not comply with the requirements of the federal statute,
there was no preemption.
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To require an original also seems to ignore the circumstances under which a
power of attorney executed by a member of the armed forces in a war zone, for example,
would be executed. It is hardly feasible to mail the original home. If a member of the
armed forces had the forethought to execute a power of attorney before going overseas,
this problem probably would be avoided. But the statute is aimed, at least in part, at
persons acting under extreme circumstances. The more likely scenario in this digital
age, is that the power of attorney would be sent home as an attachment to an email.

Although I do not think any resort to legislative history is either necessary or
helpful, I am puzzled by that portion of the legislative history which the court finds lends
support to its interpretation. The House Armed Services Committee Report, which I
quote again to provide context, states:

The past experience of service members and their dependents who
executed powers of attorney in advance of recent military operations has
shown that some states and territories have refused to honor those powers
of attorney because they were not executed in accordance with state or
territorial legal requirements. The failure to honor these documents has
created substantial hardships for military families.
This section would provide that a power of attorney signed by a person
authorized to receive legal assistance and notarized by a person
authorized under section 1044a of title 10, United States Code, to
perform notarial acts shall be recognized as valid and given full effect by
those to whom such a power of attorney is presented.

From this the court concludes that although Congress “intended to simplify the
process of preparing and using powers of attorney for military families, and it did so by
preempting the states’ various formalities for powers of attorney . . . it still retained
minimal formalities, including notarization.” Since the document in question was
notarized, the court imports the requirement that it be an original from the contention
that “notarization serves an important governmental interest in preventing fraud.”
Assuming this to be the case, I would suggest that one consider just what the recording
clerk faced when presented with this document. She did not know the person who
presented the power of attorney; she did not know the person who executed the power
of attorney, or the notary who authenticated the signature; she did not have any way of
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knowing if the notary was even a person authorized to authenticate a signature, and all
of this would have been the situation whether she had been presented with an original
or a copy. All she knew was that she was to accept only originals for recording. It is
clear that if fraud is the concern, the recording clerk would have been in no better
position to detect it, whether presented with an original or a copy.

This seems to be a particularly odd time in history to be concerned about copies.
We live in a world of copies, whether it be faxes, email attachments, or any number of
other digital transmissions. Indeed, for many years the Federal Rules of Evidence has
provided in Rule 1003 that “[a] duplicate is admissible to the same extent as the original
unless a genuine question is raised about the original’s authenticity or the circumstances
make it unfair to admit the duplicate.” Since the Federal Rules of Evidence bear the
imprimatur of Congress, this is at least some insight, in a global sense, about how
Congress feels about the reliability of copies.

Since this is a § 1983 action, I do not mean to pass any judgment on the clerk
who was following what she understood to be the limit of her powers to accept copies.
If three federal judges cannot agree on what a statute means, I cannot fault a recording
clerk for being uncertain. Since the document sought to be recorded was actually
recorded long ago, this all would be somewhat of an exercise in futility were it not for
the fact that with a large number of persons still serving in the armed forces this situation
is capable of repetition.

I would reverse the district court based upon the interpretation made of the
statute at issue, but would not pretermit the possibility of disposition of this matter on
other grounds.