Last updated on 2014.03.30
Concerned about Jason Gant's poor performance as Secretary of State? Pay attention.
The South Dakota Democratic Party's successful lawsuit to place David Mitchell of Mitchell on the District 20 House ballot brought up an awkward argument for Gant about candidates notarizing their own petitions. Gant had two problems with Mitchell's petitions. First, he said Mitchell had failed to fill in a blank swearing to his identity and Democratic affiliation. Later, Gant complained that Mitchell had notarized his own circulator's signature.
Judge Mark Barnett said the first argument wasn't enough to keep Mitchell off the ballot. Barnett didn't get to rule on the second, because Secretary Gant withdrew it. Let's review why:
Gant also had argued that Mitchell's nominating petition did not contain enough voters' signatures because Mitchell notarized some sheets of the document himself. Gant dropped that argument during Friday's court hearing after evidence submitted by Mitchell indicated that at least one other legislative candidate also might have notarized his own nominating petition.
Mitchell's lawyer, Sam Khoroosi of Sioux Falls, said 42 of the 211 legislative candidates submitted nominating petitions with various kinds of flaws.
Rep. Brian Gosch, R-Rapid City, who is speaker pro tem in the House, was the only candidate among the 42 who notarized his own nominating petition, Khoroosi said [Chet Brokaw, "SD Judge: Democratic Candidate Can Be on Ballot," AP via Real Clear Politics, 2012.05.25].
Now state Dems chief Ben Nesselhuf says notarizing one's own circulator's signature is a common, allowable practice. Khoroosi's count doesn't appear to find it all that common in this year's Legislative petitions. But Speaker-in-waiting Brian Gosch says it's allowable:
Gosch, a lawyer, said he doesn't believe he violated any law because he only notarized the signature of another person who was the official circulator of the nominating petition.
"I'm not notarizing my own signature," Gosch said [Brokaw, 2012.05.25].
I'm a blogger, not a lawyer. But even I can find Chapter 18-1 of South Dakota Codified Law, which covers notary publics. Let's read SDCL 18-1-12.2:
18-1-12.2. Party to transaction as notary public prohibited. It is a Class 1 misdemeanor for a person to affix a signature to a document as a notary public when the person has also signed the document as a party to the transaction proceeding.
Class 1 misdemeanor. That's the nastier one, the step right below felony. Year in jail, $2,000 fine.
See also SDCL 18-1-7:
18-1-7. Notarial acts valid despite notary's agency for party to transaction. A notary public who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any person or party to any transaction concerning which he is exercising any function of his office as such notary public, may make any certificates, take any acknowledgments, administer any oaths, or do any other official acts as such notary public with the same legal force and effect as if he had no such interest except that he cannot do any of such things in connection with any instrument which shows upon its face that he is a principal party thereto [emphasis mine].
Now take a look at the nominating petition for partisan election, as defined by SD Administrative Rule 5:02:08:01. It requires that each candidate sign a declaration on his or her petition.
Brian Gosch must have signed the declaration of candidacy on each sheet of his nominating petition. Brian Gosch says he also notarized on at least some of those sheets the signature of the person who circulated the petition for him.
To be particular—as one should always be when dealing with the solemn affairs of the notary public—Brian Gosch affixed his signature to a document as a notary public when he had also signed that document as a party to the transaction proceeding. That act appears to violate SDCL 18-1-12.2, making Gosch guilty of a Class 1 misdemeanor.
Brian Gosch exercised a function of his office as a notary public on an instrument which shows upon its face that he is a party thereto. That act appears to violate SDCL 18-1-7, which appears to invalidate any such instrument.
The same statements apply to David Mitchell, if he did indeed notarize his own nominating petitions. Class 1 misdemeanor, invalid petitions.
So what's supposed to happen here?
SDCL 18-1-13. Removal of notary from office for violation. Any notary public who is convicted of committing an act which is designated as a misdemeanor in this chapter or any felony shall be removed from office by the secretary of state.
And when's that supposed to happen?
SDCL 18-1-14. Notice to notary of revocation of commission. Should the commission of any notary public be revoked, the secretary of state shall immediately notify such person by mail.
Chapter 18-1 makes clear that notaries answer to the Secretary of State. If a notary screws up, it's the Secretary of State's job to yank their seal.
I haven't heard any barking yet. Secretary Gant was made aware of a violation of Chapter 18-1 during the May 25 court hearing. If Secretary Gant was scrutinizing the nominating petitions (and he certainly was scrutinizing some of them back in March) he should have been aware of said statutory violation in March.
But as far as I know—and friends of Gosch, Mitchell, and Gant, please do correct me if I am wrong—Secretary Gant has not revoked either Rep. Gosch's or Mr. Mitchell's notary commission.
We do well to heed the blunt advice of Margaret Thatcher's press secretary Bernard Ingham (foul language is o.k. when conservatives do it, right?): "Many journalists have fallen for the conspiracy theory of government. I do assure you that they would produce more accurate work if they adhered to the cock-up theory."
Whether Secretary Gant's inaction is a product of conspiracy or incompetence, he is damaging the public trust.
Update 18:22 CDT: District 32 House candidate Jackie Swanson, who hopes to unseat either Rep. Gosch or his GOP seatmate Kristin Conzet, is sending around copies of a complaint she just sent to Secretary Gant this evening . Gant has probably already stepped out of the office to engage in more politics, so you may be reading her text before he does. She read Chet Brokaw's report week before last and obtained copies of Gosch's petitions.
Brian notarized three of his own petitions, which, if invalidated, would have left him with insufficient signatures to qualify for the ballot. This appears to be a statutory violation, which would make those petitions invalid, and a criminal act for which he should be held appropriately accountable.
To quote from your website regarding notary commissions, a notary is a public officer charged with "special trust and confidence in integrity and ability." Your office is charged with the essential public trust to run legal and fair elections. Your office is also charged with the oversight of notary publics.
I am very concerned about the integrity of elections, the public perception of favoritism, and the uniform application of the law. The notion of political favorites determining not only public policy, but even right and wrong, is troubling to many of us. Though progress has been made in state government transparency, time and again arrangements come to public light that make us question the integrity of our public officials. Too often, the voices of disagreement or dissent are silenced.
Brian Gosch is a good man and a good legislator. He is also a lawyer and the people's representative. I realize that he made an honest mistake and did not intend to disobey the law, but that appears to be what has happened [Jackie Swanson, letter to Secretary of State Jason Gant, 2012.06.04].
Swanson tells Secretary Gant that she lacks the resources to bring an immediate court challenge. She appeals to Gant to "step in" and correct the situation.
Notaries don't attest to the truth of anything other than that the person who signed was in their presence...or what?
Notaries are not some sacred jeebus, they are just a rubber stamper group of low level clerks who scowl a lot. Heck, they even let me be a notary once.
I would respectfully ask that you all leave your backpacks full of horse sausage far away from young Mr. Gant, he's busier than you can know right now doing more important things.
I guess laws only apply to those who still respect them. Grudz young Mr. Gant has no respect for the law unless it is one which allows him to suppress the people's rights.
Wow! No wonder they are making so much out of my faux pas over at DWC!
Like what, Grudz, interfering in more primary races? Notaries carry the state's stamp of truth. I take that oath and seal very seriously. If the state can't be trusted to guard that seal, it loses credibility. Notaries matter. Secretary Gant's inattention to his duty matters.
Stace: I thought Lou Adamson was a guy the first time I saw the name. I may have even e-mailed her with a "Mr." in my greeting. Oops. Typical kind of superficial mistake that DWC uses as a distraction from real issues.
It's the same way in North Dakota - 47-19-33 of the ND Century Code pretty much says the same thing and even crossapplies it to stuff where one's spouse is a party of interest. To my understanding, most, if not all, states have a similar clause at least applying to oneself (it varies regarding family), which shocks me even further that an actual lawyer did not catch this.
This is obviously a crime of laziness and/or stupidity, but I agree that this needs to be addressed. Pronto.
Notaries don't really matter, or Mr. Gant would have more staff to train them.
Come on, Grudz, you're smarter than that... wait! You're teasing us! You're deliberately making a circular argument—Gant's own dereliction of the duty state law says he has proves he doesn't have such a duty—to prove the absurd incompetence of the office! You are a satirist!
I'm a notary. I notarized 1 thing in the 3 years I have had it. I don't even know where my seal is. There is some laws and rules of it when you get it. The problem is when is the last time you have heard of someone getting in trouble for notarizing something? I've seen referendum or initiative sheets at bars, restaurants, convenient stores, etc. With the seal already on them and people are suppose to sign up. When it says that the notary is suppose to witness all of them. I don't think this is a Gant problem, I think this is a South Dakota problem.
Interesting, Joe. But I count on the notary to know the rules. On those petitions, the notary doesn't have to witness every signature. On my HB 1234 referendum petitions, the notary only has to witness my signature as circulator. If the state has been slack on enforcing rules, it's the Secretary of State's job to tighten things up.
I fear that saying Gant is incompetent is being nice...applying two standards to election laws seems to smack of something else.
So if we file petitions calling for Gant's recall, do we have to count on him to make sure they're notarized in a correct and legal manner??
Federally comissioned officers, active duty or retired can and do notarize their own interested documents. The supremacy clause trumps this silly state law. And those officers don't require a medieval "stamp" or "seal".
Joe - I'll answer your question on trouble with another question: how often does a notary make a clear-as-crystal violation of a basic tenant of duty? Bonus question: how often does it involve an election where the fate of a candidate could be impacted?
I don't see people following through with full-blown crinimal charges in a criminal court over this, but I could see a smaller scale thing where money is lost and reputations are at least slightly more tarnished.
On the validity of signiatures: I'm about 85% sure that the intent of the notary in such a case is to verify that the candidate in question is claiming that the undersigned people support the candidate being on the ballot. As long as the notary isn't privy to wrongdoing by the candidate, any liability would then fall on the candidate...or the Secretary of State office that would be in charge of validating the signiatures...but certainly not the notary......in normal circumstances where the notary is not also the candidate in question.
Moral of the story: pay the extra few bucks to have one of the UPS stores stamp the document. Make Gant, or somebody with shreds of competence and consideration of duty, at least rattle the chains as a sign that this shouldn't happen again.
If I were Swanson, or the opponent of Mitchell, I'd be weighing my options right now.
Still thinking about Grudz: The fact that Gosch's violation is a Class 1 misdemeanor, not Class 2, suggests the Legislature takes notaries pretty seriously. John, I'd want to see the particulars of the federal statute here... and I'd want to see that the notaries in question are federally commissioned. The statutes here deal very specifically with notaries commissioned by our Secretary of State and a seal bearing the name of our state.
And Dave, alas! No statewide recall. South Dakota law only authorizes recall at the municipal level.
Pierre is starting to look like the Vatican: a doddering leader, secrets, repression, cloister, backbiting, payments for influence, slush funds, dirty prosecutors, leaks, crime, a nepotistic press...
How conservative.
What I think is funny is Gant made this argument against Mitchell before checking to see if his tossing it out would splash anyone else. I don't know how important notaries are ... I find one when I need one. But it appears to me Gant is trying to play politics and using his office to decide who should get to run and who shouldn't. So he went looking for any reason he could to disqualify Mitchell. When he found out one of his arguments hurt one of his own, he withdrew it. Perhaps Mr. Mitchell should be disqualified for not using a notary currently, but this isn't what concerns me about this story. It's Mr. Gant's actions and in my opinion attempts to influence the election.
I remember many of the complaints about Gant during the election were aimed at the point that he was sloppy. I would like to give him the benefit of the doubt on this and just chalk it up to sloppiness.But as was noted during the campaign , Sec of State is the last place we want sloppiness in the Government.
Republicans are scared to death of "voter fraud" which in actuality may be as dangerous as the tooth fairy.
Cory, are you advocating charges being filed?
Frank James accurately and appropriately said this: "But it appears to me Gant is trying to play politics and using his office to decide who should get to run and who shouldn’t."
Gee, sounds like what the military government has done in Egypt. They declared that the candidates, who just happened to be their strongest competitors, could not run for a variety of concocted excuses. USA Repubs are doing the same in every way that they can.
Larry, your comment was hilarious, especially the last two words!
Mr. Wilken, my granddaughter says there is a dangerous tooth fairy. Here be a link to it, but I'm too scared to look. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CFgQFjAA&url=http%3A%2F%2Fwww.imdb.com%2Ftitle%2Ftt0282209%2F&ei=cI_OT_6pEMGe2AWX0oTSDA&usg=AFQjCNEpChlkA8inNNAAUqSMnVFZLq-B5w&sig2=WGYW6bdmmjckz0yO9vf3LA
Gant throws down the gauntlet!
Gant to investigate campaign groups
http://arguspoliblog.tumblr.com/post/24486022536/gant-to-investigate-campaign-groups
Any bets that the groups he will investigate will not be any of those that he and his friends have invested in?
If only they would have hired his #2 man Pat Powers to consult for them.
Carter Center on speed dial: SDGOP can't muck with election results...right?
Michael, I'm saying it seems clear that Gosch committed a Class 1 misdemeanor. State law makes clear that Sec. Gant is supposed to act.
Heidelberger for Secretary of State in the next election?
I'd run that ship like a debate tournament: tight and fair!
Tight and fair. That's a good way to run an office responsible for election oversight - and that's what the public deserves.
I am a Notary and have known forever that you cannot notarize ANY document that you are a party to....Im not a lawyer....but I can read!
Yet when a prominent lawyer and GOP leader violates this law, Secretary Gant takes no action. The fix is in!
I think what Joe means by witnessing all the signatures is that the notary needs to see all the signatures on the referendum before adding his/her seal.
Cory, 'er, Doubting Thomas, ye' of little faith. Check out Section 1.5 of Army Regulation (AR) 27-55, Notarial Services: http://www.apd.army.mil/pdffiles/r27_55.pdf
"The authority of United States Army personnel to provide notarial services is based on Federal, State, and foreign law.
(See paras 2–1, 2–3, and 2–4.) Section 573 of the National Defense Authorization Act for Fiscal Year 1997, Public
Law 104–201, Volume 110, U.S. Statutes at Large, p. 2534 made significant changes to 10 USC 1044a(b) and
eliminated duty status limitations on notarial authority of certain members of the United States Army Reserve (USAR)
and the Army National Guard of the United States (ARNGUS). Pursuant to Section 1103 of the National Defense
Authorization Act for Fiscal Year 2002, Public Law 107–107, Volume 115, U.S. Statutes at Large, p. 1236, persons
performing notarial acts under 10 USC 1044a may do so without regard to geographic limitation. The validity of
notarial acts performed pursuant to 10 USC 1044a is a matter of Federal law. State notarial authority may only be
exercised in the state concerned."
It lists the sources of the authority, short of the US Constitution's Supremacy Clause, which as the Jedi Master Teacher you are, you know about.
One may also check the brief paragraph on military, that follows the states, in the wikipedia Notary Public article.
To summarize: all a federal commissioned officer (7 branches: Army, Navy, Marines, Air Force, Public Health Service, NOAA, and Coast Guard), active or retired, needs to "notarize" a self-interested document is her/his signature, the date, and the stones to shove it past any state bureaucrat getting in the way.
Next time I may have to charge you for research - you may match my tips to your jar. . . .
Perfectly relevant, John... if Gosch is a member of the military. Is he?
Cory, it appears my critism of these silly state laws flew over your head. I didn't say Gosch was a federal officer. I couldn't t care less whether he is (probably not): nor could I care less about Gosch. My point was merely pointing out that SD's constipated legislative scheme wasn't the only way to notarize and that self-notarizing self-interest documents is not unheard of.
You're better served to stick the issue raised, even when it slightly diverts from the main theme of the web posting - for it's a large solar system out there.
Indeed, your criticism does remain over my head. In the text you've given me, I can't see anything authorizing a South Dakota citizen to use a South Dakota notary seal for a document pertaining to matters of which that citizen is a primary party.
...and Gosch has yet to lodge any Supremacy Clause defense. He seems to be simply ignorant of the South Dakota law governing his use of the South Dakota seal.