Richardson v. The UPS Store, Inc.

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SJC-12769
KEVIN RICHARDSON, SECOND1 vs. THE UPS STORE, INC., & another.2
Suffolk. April 9, 2020. - October 28, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.3
Notary Public. Statute, Construction.
Certification of a question of law to the Supreme Judicial
Court by the United States District Court for the District of
Massachusetts.
Orestes G. Brown for the plaintiff.
Joseph R. Palmore, of the District of Columbia, for the
defendants.
Michael Walsh, for Walsh & Walsh LLP, amicus curiae,
submitted a brief.
1 Individually and on behalf of all others similarly
situated.
2 J&V Logistics LLC.
3 Chief Justice Gants participated in the deliberation on
this case prior to his death.
2
BUDD, J. In this case we have been asked by the United
States District Court for the District of Massachusetts whether
G. L. c. 262, §§ 41 and 43, Executive Order Nos. 455 (03-13) and
455 (04-04), or the codification of such orders within G. L.
c. 222, limit the fees that a notary public may charge for any
and all notarial acts to no more than $1.25. The question
arises in connection with a lawsuit brought by the plaintiff,
Kevin Richardson, II, alleging that the defendants, The UPS
Store, Inc., and J&V Logistics LLC, the franchise owner,
overcharged him for notary services. We conclude that the $1.25
fee cap set forth in G. L. c. 262, § 41, applies only to a
particular notarial act known as "noting," i.e., a step in the
process of protesting a dishonored negotiable instrument, and
that the meaning of that section has not been expanded, either
by statute or executive order, to include all notarial acts.4
And aside from § 41 there currently are no statutes or executive
orders that cap fees for any other notarial act.
Background. We recite the undisputed facts relevant to the
certified question. The plaintiff used the services of a notary
public at the subject UPS store to notarize documents signed by
the plaintiff or his wife various times between 2012 and 2016.
On at least three occasions, the plaintiff was charged a total
4 We acknowledge the amicus brief submitted by Walsh & Walsh
LLP.
3
of ten dollars per service, including $1.25 for the notarization
and $8.75 for clerical fees.
In August 2016, the plaintiff filed suit against the
defendants in the Superior Court, alleging violations of G. L.
c. 262, § 41, and G. L. c. 93A. The defendants removed the case
to the United States District Court for the District of
Massachusetts under the Federal Class Action Fairness Act of
2005, where the plaintiff moved for class certification of
present and former purchasers of notarization services from the
defendants for the period between August 30, 2012, to the date
of judgment, and alleging $5.9 million in damages. The
defendants opposed class certification and moved to certify to
this court the question whether § 41 applies to all notarial
acts as the plaintiff contends. The District Court certified
the question regarding the scope of § 41, and denied the
plaintiff's motion for class certification with leave to renew
within fourteen days of our opinion on this matter.
The certified question5 put to this court asks:
"Does [G. L. c. 262, § 41 or 43,] proscribe fees in excess
of $1.25 for notarization of a document where the notarial
act at issue is unrelated to the protest of a bill of
exchange, order, draft or check for non-acceptance or non-
payment, or of a promissory note for non-payment and what,
if any, impact do Executive Order Nos. 455 (03-13) and 455
(04-04) and the codification of Executive Order No. 455
5 The original certified question, which made reference only
to G. L. c. 262, §§ 41 and 43, was expanded to include Executive
Order No. 455 and G. L. c. 222 in the inquiry.
4
(04-04) as [G. L. c. 222] in 2016 have on the question of
whether [G. L. c. 262, § 41 or 43,] proscribe such fees?"
For reasons explained infra, we answer the question "no," G. L.
c. 262, §§ 41 and 43, do not proscribe fees for acts unrelated
to the protest of a negotiable instrument, and neither Executive
Order Nos. 455 (03-13) and 455 (04-04) nor G. L. c. 222 has any
impact on our interpretation of §§ 41 and 43.
Discussion. 1. Scope of G. L. c. 262, § 41. In
determining the scope of § 41, "[o]ur analysis begins with the
statutory language, the principal source of insight into
[l]egislative purpose" (quotation and citation omitted). Dental
Serv. of Mass., Inc. v. Commissioner of Revenue, 479 Mass. 304,
306 (2018). Section 41 provides:
"The fees of notaries public shall be as follows: For the
protest of a bill of exchange, order, draft or check for
non-acceptance or non-payment, or of a promissory note for
non-payment, if the amount thereof is [$500] or more, one
dollar; if it is less than [$500], fifty cents; for
recording the same, fifty cents; for noting the non-
acceptance or non-payment of a bill of exchange, order,
draft or check or the non-payment of a promissory note,
seventy-five cents; and for each notice of the non-
acceptance or non-payment of a bill, order, draft, check or
note, given to a party liable for the payment thereof,
twenty-five cents; but the whole cost of protest, including
necessary notices and the record, if the bill, order,
draft, check or note is of the amount of [$500] or more,
shall not exceed two dollars, and if it is less than
[$500], shall not exceed one dollar and fifty cents; and
the whole cost of noting, including recording and notices,
shall in no case exceed one dollar and twenty-five cents"
(emphasis added).
5
The plaintiff contends that § 41 limits the fees that notaries
public are permitted to charge for any notarial act to $1.25.
In support of this interpretation, he points to the last
sentence in § 41, which states: "[T]he whole cost of
noting . . . shall in no case exceed one dollar and twenty-five
cents." We are not convinced.
By its plain language, § 41 applies to fees charged by
notaries public in connection with the act of "protesting" the
nonpayment of a negotiable instrument. A protest is a series of
notarial acts in which a notary public prepares a certificate of
dishonor verifying that a negotiable instrument, such as a check
or promissory note, was dishonored by nonacceptance or
nonpayment. See G. L. c. 106, § 3-505 (b). The certificate is
used to recover the money owed. See G. L. c. 106, §§ 3-503 (a),
3-505 (b). Although this process rarely is used in modern
times, it was a common procedure in 1836, when the law was first
passed. R.S. (1836), c. 122, § 16.6 Section 41 enumerates a
6 General Laws c. 262, § 41, is the current codification of
a statute that was originally enacted in 1836 as R.S. (1836),
c. 122, § 16. Since its enactment in 1836, the statute has
undergone multiple revisions as the Legislature periodically
recompiled its statutes. See R.S. (1836), c. 122, § 16; G.S.
(1860), c. 157, § 13; P.S. (1882), c. 199, § 21; R.L. (1902),
c. 204, § 31; G. L. c. 262, c. 41 (1921). The final clause,
providing that "the whole cost of noting, including recording
and all notices, shall in no case exceed one dollar and twenty-
five cents," was introduced in 1839, and has remained unchanged
since. See St. 1839, c. 93, § 1.
6
variety of fees associated with discrete notarial acts within
the process of protesting, including two separate fee caps that
limit the "whole cost of protest" to two dollars if the
negotiable instrument is worth $500 or more, and $1.50 if the
negotiable instrument is worth less than $500.
The statute does not define "noting"; thus, it is to be
"construed according to the common and approved usage of the
language." G. L. c. 4, § 6, Third. At the same time, however,
"technical words and phrases and such others as may have
acquired a peculiar and appropriate meaning in law shall be
construed and understood according to such meaning." Id. See
Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476
Mass. 377, 382 (2017).
The plaintiff argues that "noting" should be broadly
defined according to various dictionary definitions of the verb
"to note" and that the phrase "the whole cost of noting" refers
to all notarial acts, thereby limiting the fee for all notarial
acts to $1.25. However, there is ample evidence, including the
unique context and use of the term in § 41, that it is used as a
term of art, limited in meaning and application.
When § 41 was enacted in the mid-1800s, "noting" commonly
was known as a step in the process of protesting the failure to
honor a negotiable instrument. See F.M. Hinch, John's American
Notary and Commissioner of Deeds Manual § 442, at 281 (3d ed.
7
1922). It refers to a notary's act of initialing, dating, and
briefly describing the stated reason for the failure to honor a
negotiable instrument as a precursor to issuing a formal
certificate of protest. See A.E. Piombino, Notary Public
Handbook: Principles, Practices & Cases, National Edition 177
(1996) (defining "note of protest" as "brief written statement
of the fact of a protest, signed by the notary public on the
bill, which will be transcribed into proper form at a later
time"); J.O. Skinner, A Book of the Laws of Washington Relating
to Notaries Public 234 (1911) ("The 'noting' of a bill is merely
a preliminary step to the protest . . ."). Black's Law
Dictionary likewise refers to "noting" in its definition of
"protest," describing it as "[a] notary public's written
statement that, upon presentment, a negotiable instrument was
neither paid nor accepted" and stating that this process is also
termed "initial protest" and "noting protest." Black's Law
Dictionary 1479 (11th ed. 2019).
By noting the protest, notaries could date certificates
when they were received, making it easier to comply with time
restrictions associated with protesting. See Bailey v. Dozier,
47 U.S. 23, 29 (1848) ("if the bill has been duly presented for
acceptance, or payment, and dishonored, and a minute made, at
the time, of the steps taken, which is called noting the bill,
the protest may be drawn up in form afterwards, at the
8
convenience of the notary"); Allen v. Merchant's Bank of N.Y.,
22 Wend. 215, 242 (N.Y. 1839) (when protesting foreign bill,
sufficient to "note the protest on the day of demand, and it may
be drawn up in form at a future period" [citation omitted]).
Various courts, including this one, referred to "noting" in
this context in the 1800s. See Opinion of the Justices, 150
Mass. 586, 588 (1890) (recognizing "noting and extending of
marine protests" as one of principal acts of notaries public
within Commonwealth). See also Bailey, 47 U.S. at 29; Smith v.
Roach's Ex'r, 46 Ky. 17, 19 (1846); Allen, 22 Wend. at 242; Bank
of the Ohio Valley v. Lockwood, 13 W. Va. 392, 432-433 (1878).
Thus, we conclude that "noting" as it appears in § 41 is used as
a term of art rather than as the broader definition of the verb
"to note," as in "to make a brief written statement."7 See
Black's Law Dictionary 828 (1st ed. 1891).
7 Even if we were to adopt the nontechnical definition of
"noting" as "mak[ing] a brief written statement," as discussed
infra, the subject matter of the statute dictates that we limit
the scope of this general term to protests only. Section 41
sets fees for "the protest of a bill of exchange, order, draft
or check for non-acceptance or non-payment, or of a promissory
note for non-payment," "recording the same," "noting the non-
acceptance or non-payment of a bill of exchange, order, draft or
check or the non-payment of a promissory note," "each [such]
notice . . . given to a party liable for the payment thereof,"
and "the whole cost of protest," before using the general phrase
"the whole cost of noting." G. L. c. 262, § 41. Because all of
the other acts enumerated in § 41 are unambiguously related to
the process of protest, "noting" must likewise refer, at its
broadest, to brief written statements made in the course of a
protest.
9
Other rules of statutory construction also point to this
result. The canon of noscitur a sociis counsels that terms must
be read within the context of the statute in which they appear.
"[A] general term in a statute or ordinance takes meaning from
the setting in which it is employed. The literal meaning of a
general term in an enactment must be limited so as not to
include matters that, although within the letter of the
enactment, do not fairly come within its spirit and intent."
People for the Ethical Treatment of Animals, Inc. v. Department
of Agric. Resources, 477 Mass. 280, 287-288 (2017), quoting
Kenney v. Building Comm'r of Melrose, 315 Mass. 291, 295 (1943).
Section 41 sets a schedule of fees for particular notarial acts,
all of which unambiguously refer to acts related to the process
of protest. The final clause, setting a fee for "the whole cost
of noting," takes its meaning from the rest of § 41, and
therefore must also refer to a particular protest-related act,
that is, the technical definition of noting an initial protest,
discussed supra. Additionally, "[w]here the Legislature uses
the same words in several sections which concern the same
subject matter, the words must be presumed to have been used
with the same meaning in each section" (quotation and citation
omitted). Insurance Rating Bd. v. Commissioner of Ins., 356
Mass. 184, 188-189 (1969). Section 41 uses "noting" twice in
setting fee limitations. Its first use sets a fee limit of
10
seventy-five cents for "noting the non-acceptance or nonpayment
of a bill of exchange," firmly contextualizing "noting" as a
notarial act within the scope of protest. Section 41 then uses
"noting" within the clause at issue, limiting the "whole cost of
noting" to $1.25. Due to the Legislature's repeated use of
"noting" within § 41, we must presume that the Legislature
intended to use the term consistently throughout the statute,
and therefore interpret the second use of noting to be limited
by the first.
We also must treat the Legislature's decision not to use a
broad catch-all phrase such as "notarial act" at the end of § 41
as intentional, and therefore cannot imply its meaning where the
phrase was excluded. See Commonwealth v. Gagnon, 439 Mass. 826,
833 (2003), quoting 2A N.J. Singer, Sutherland Statutory
Construction § 46.06, at 194 (6th ed. rev. 2000) ("[W]here the
legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where
excluded"). The Legislature defines "notarial act," or
"notarization," as "an act that a notary public is empowered to
perform" in G. L. c. 222, § 1. Among other things, G. L.
c. 222, discussed infra, sets forth rules and regulations for
notaries public. See G. L. c. 222, §§ 15, 16, 22, 23. In
contrast, § 41 excludes any mention of "notarial acts"
generally, and instead uses precise language throughout the
11
section to regulate the steps of a protest. We must presume
that had the Legislature intended the final clause in § 41 to
limit fees for all notarial acts, it would have done so.
Finally, if we were to interpret the last mention of
"noting" in § 41 as meaning all notarial acts so as to limit the
fee for all notarial acts to $1.25, that would render other
parts of § 41 both ambiguous and meaningless, a result we
eschew. See King v. Town Clerk of Townsend, 480 Mass. 7, 11
(2018) (declining to "adopt an interpretation that renders the
act ambiguous"); Phillips v. Equity Residential Mgt., L.L.C.,
478 Mass. 251, 258 (2017), quoting Adamowicz v. Ipswich, 395
Mass. 757, 760 (1985) ("so long as it yields a 'logical and
sensible result,' we do not interpret a statute so as to render
any portion of it meaningless"); ROPT Ltd. Partnership v. Katin,
431 Mass. 601, 603 (2000) (court may not interpret statutes to
produce illogical result).
Interpreting "the whole cost of noting" to mean the cost of
any notarial act would result in the final clause of § 41
capping fees at $1.25 for all notarial acts, including the
various acts of protest regulated in earlier clauses of § 41.
This interpretation of the "whole cost of noting" creates direct
conflict with the earlier clause that caps fees for the "whole
cost of protest" at two dollars for negotiable instruments with
a value of $500 or more and at $1.50 for negotiable instruments
12
with a value under $500. Protest, as a notarial act, would be
regulated both by the "whole cost of protest" clause with fee
limits of two dollars or $1.50, and by the "whole cost of
noting" clause, which sets a cumulative cap of $1.25 under this
interpretation. Defining "the whole cost of noting" as the cost
of any notarial act renders the fee limits on the "whole cost of
protest" meaningless because of the conflicting fee caps and
creates ambiguity over which fee limitation applies when
protesting negotiable instruments. We reject this
interpretation, as it produces an illogical and contradictory
result. See Commonwealth v. Rosado, 450 Mass. 657, 663 (2008),
quoting ROPT Ltd. Partnership, 431 Mass. at 603 (rejecting
interpretation that would "produce an illogical result").
For all of the reasons outlined supra, we conclude that the
Legislature used "noting" as a term of art describing a specific
step in the process of noting and did not intend for it to refer
to all notarial acts.8
8 The plaintiff points to legislative history to support his
interpretation of § 41. He contends that, in adding the "whole
cost of noting" clause to § 41 in 1839, three years after the
statute was enacted, the Legislature intended to insert a catch-
all fee for all notarial acts, as was present in two colonial
laws regulating notary fees that predated § 41. See R.S.
(1836), c. 122, § 16; St. 1839, c. 93, § 1. The first colonial
regulation of notary public fees was enacted in 1650 and
included a catch-all fee for "any kind of [writing] not hereby
specially [provided] for." See 3 Records of the Governor and
Company of the Massachusetts Bay in New England 210 (1854). By
13
2. Section 43. The plaintiff argues that § 43, which
governs the fees for official duties or services, confirms that
the fee for any notarial act is capped at $1.25. This argument
is misplaced. General Laws c. 262, § 43, provides: "The fees
of public officers for any official duty or service shall,
except as otherwise provided, be at the rate prescribed in this
chapter for like services." The plaintiff apparently contends
that § 43 applies the $1.25 fee limit set forth in § 41 to "like
services," and that "like services" means all notarial acts.
This argument presupposes that § 41 sets a $1.25 fee cap, which,
as discussed supra, is an interpretation we reject.
The ordinary meaning of "like" is "[e]qual in quantity,
quality, or degree; corresponding exactly," or "[s]imilar or
substantially similar; of much the same nature." Black's Law
Dictionary 1113 (11th ed. 2019). "Like services," then, refers
to acts that are virtually identical to ones with fees
prescribed in G. L. c. 262. Our interpretation of the precursor
1713, a different fee schedule for notaries public had been
established, including a similar catch-all provision for "other
writings" on a per page basis. See P.L. (1713-1714), c. 4.
However, the Legislature did not codify either of the colonial
fee schedules when it enacted the statute at issue in 1836.
Further, when the Legislature added the "whole cost of noting"
clause in 1839, it did not adopt the catch-all language of the
colonial acts, which referred to "any kind of [writing]" and
"other writings"; instead, the Legislature used "noting," which,
as discussed supra, is a term with a well-established technical
meaning.
14
statute9 to § 43 is consistent with this view. In Howard v.
Proctor, 7 Gray 128 (1856), a tax collector charged the
plaintiffs a commission for costs related to the collector's
seizure and sale of the plaintiffs' horse to recover unpaid
taxes. Id. at 130, 132-133. Although no statute specifically
prescribed the fees chargeable by a tax collector, we reasoned
that, under the precursor statute to § 43, the tax collector was
permitted to charge a fee equal to the statutory fee prescribed
for the same act carried out by a sheriff. Id. at 132-133 ("The
like services are those of the sheriff"). In Converse v.
Jennings, 13 Gray 77 (1859), we concluded that a tax collector
could not charge the statutory fee chargeable by a sheriff for
executing a levy on real estate because the tax collector's
action of stopping the sale of a property for nonpayment of
taxes was not a "like service" to the sheriff's levy on a
completed sale. Id. at 78. Howard and Converse effectuated our
understanding that fees for "like services" means statutorily
prescribed fees for the same services performed by a different
9 The relevant statutory language was first enacted in 1836:
"In all cases, not expressly provided for by law, the fees of
all public officers, for any official duty or service, shall be
at the same rate as those prescribed in this chapter for the
like services." R.S. (1836), c. 122, § 21. Over the subsequent
decades, this statute was slightly revised as the Legislature
recompiled its statutes. See G.S. (1860), c. 157, § 14; P.S.
(1882), c. 199, § 23; R.L. (1902), c. 204, § 33; St. 1913,
c. 611, § 16. It was renumbered as G. L. 262, § 43, in 1921,
where it has remained with the relevant language unchanged.
15
type of official. See Simmons v. County of Suffolk, 230 Mass.
236, 238 (1918) (applying same statutory standard of
compensation to different justices and clerks for performing
same "like" services).
Thus, read together with § 41, § 43 simply requires other
officials who are authorized to provide the services described
in § 41 to limit the fees for such services to those enumerated
in § 41. For example, a "United States consul or vice consul"
is also permitted to prepare a protest pursuant to G. L. c. 106,
§ 3-505 (b). Section 43 requires a consul who provides that
service to limit the fees charged to those set forth in § 41.
Section 43 does not, by reference to "the rate prescribed in
this chapter for like services," extend the $1.25 fee limit for
the "whole cost of noting" in § 41 to all notarial acts. As
discussed supra, "noting" a protest is a discrete notarial act.
It is not a service "like" other notarial acts, such as
notarizing a document or witnessing a signature. For these
reasons, we conclude that § 43 has no impact on the scope or
meaning of § 41.
3. Impact of subsequent executive orders and legislation
on scope of § 41. The plaintiff additionally argues that, even
if "noting" was used as a term of art when § 41 was passed in
1836, by referencing § 41 in Executive Order No. 455, in effect
the Governor altered the section so that the meaning of the
16
phrase "the whole cost of noting, including recording and
notices, shall in no case exceed [$1.25]" was no longer limited
to protests but was extended to any notarial act.10 We do not
agree.
In 2003, the Governor issued Executive Order No. 455,
entitled "Standards of Conduct for Notaries Public," to provide
contemporary guidelines regarding the proper duties and conduct
of notaries public.11 See Executive Order No. 455 (03-13). The
executive order provided notaries public with notice of what
behavior constituted misconduct and would be considered by the
Governor when deciding whether to appoint, reappoint, or remove
a notary's commission. See Executive Order No. 455 (04-04),
10We note that in 2016, in addition to codifying
substantial portions of Executive Order No. 455, the Legislature
added §§ 16 and 19 to G. L. c. 222, which provide that notaries
public cannot charge fees in excess of "the fee provided for in
[G. L. c. 262, § 41,] or any other general or special law or
executive order," and must tender services when such fee is paid
(emphasis added). See G. L. c. 222, §§ 16 (a) (vi), 19,
inserted by St. 2016, c. 289, § 6. Thus, the Legislature has
authorized the Governor to promulgate fee limitations for
notarial acts, in addition to the Governor's constitutional
authority over the appointment and removal of notaries public.
See arts. 4 and 37 of the Amendments to the Massachusetts
Constitution.
11In 2004, the Governor issued a revised Executive Order
No. 455, which made multiple revisions to the original order.
Compare, e.g., Executive Order No. 455 (04-04), § 1, with
Executive Order No. 455 (03-13), § 1. However, the relevant
provisions of Executive Order No. 455 are identical in both
orders. See Executive Order No. 455 (04-04), §§ 2, 6(a)(6), 7;
Executive Order No. 455 (03-13), §§ 2, 6(a)(6), 7.
17
§ 1(a). With regard to § 41, it provided: "A notary public
shall not perform a notarial act if . . . the notary public will
receive as a direct result of the notarial act any commission,
fee, . . . or other consideration exceeding in value the fees
set forth in [G. L. c. 262, § 41] . . . ." Id. at § 6(a)(6).
It similarly required that "[a] notary shall perform any
notarial act described in this executive order for any person
requesting such an act who tenders the fee set forth in [G. L.
c. 262, § 41]," unless certain circumstances not relevant here
are present. Id. at § 7.
According to a document published in 2003 by the Governor's
legal counsel, entitled "Frequently Asked Questions and
Clarifications: Executive Order 455 (03-13)," the primary
purpose of Executive Order No. 455 was to prevent fraud,
forgery, and other misconduct by notaries public.
Importantly, although Executive Order No. 455 referenced
§ 41, the clear intent was to provide a mechanism to enforce
that section, not to interpret or modify it.12 See Frequently
12Earlier, in 1996, the Secretary of the Commonwealth
published a brochure entitled "Guidelines for the Notary
Public." Under the heading "What fees may a notary legally
charge?" the document provides:
"According to their fee statute [G. L. c. 262, § 41 (1986
ed.)], notaries public may charge no more than one dollar
and twenty-five cents ($1.25) for noting and recording a
document and no more than two dollars ($2.00) for
18
Asked Questions and Clarifications: Executive Order 455 (03-
13), supra ("Does the Executive Order change any statutes? No.
If there is a statutory requirement in place, the Executive
Order does not change that requirement").
In 2016, the Legislature enacted a sweeping reform in
notary public law with the passage of St. 2016, c. 289, entitled
"An Act regulating notaries public to protect consumers and the
validity and effectiveness of recorded instruments". The
statute significantly amended G. L. c. 222 and imposed the first
significant regulations on the conduct of notaries public in
decades. See, e.g., G. L. c. 222, §§ 13 (qualifications for
appointment), 15 (listing notarial acts and prescribing forms
for acknowledging signatures), 16 (prohibiting certain acts), 17
(prohibiting notaries from practicing law unless licensed
attorneys), 21 (requiring specific language in notary public
protesting commercial paper. As a notary, you are a public
servant and should be available to perform a public service
at a reasonable cost. Excessive charges could result in
complaints to the Governor's Council."
The plaintiff contends that this publication indicates that the
Secretary understood G. L. c. 262, § 41, as setting a $1.25 fee
for "noting and recording" any document. However, this
publication, like Executive Order No. 455, simply refers to
§ 41; it does not purport to modify its meaning. Even more
telling, the brochure admonishes notaries that they should be
"available to perform a public service at a reasonable cost" and
that "[e]xcessive charges could result in complaints to the
Governor's Council." There would be no need for such warnings
if § 41 set the fee for any notarial act at no more than $1.25.
19
advertisements in languages other than English). In doing so,
the Legislature codified and replaced Executive Order No. 455's
provisions referencing G. L. c. 262, § 41, by including G. L. c.
222, §§ 16 and 19, which largely mirror the language of the
order. See Executive Order No. 571 (Oct. 6, 2016) (repealing
Executive Order No. 455, effective on same date on which St.
2016, c. 289, went into effect).
Using virtually the same language as Executive Order No.
455, G. L. c. 222, § 16 (a) (vi), prohibits a notary public from
performing "a notarial act" for any fee "exceeding the maximum
fees provided in [G. L. c. 262, § 41,] or any other general or
special law or executive order." Section 19 provides that a
notary public must perform "a notarial act" for any person
tendering "the fee provided for in [G. L. c. 262, § 41,] or any
other general or special law or executive order," subject to
certain exceptions not relevant here. In turn, G. L. c. 222,
§ 1, defines "notarial act" and "notarization" as "an act that a
notary public is empowered to perform."
The plaintiff argues that the references to § 41 in §§ 16
and 19 extend the $1.25 fee cap in § 41 to all notarial acts,
because G. L. c. 222 expressly defines "notarial act" to
encompass any act performed by a notary public and §§ 16 and 19
do not state that the fees set forth in § 41 are prescribed only
for acts related to protest. However, merely referencing a
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previous statute by title and chapter does not suffice to amend
or alter the meaning of the referenced statute.
By their plain language, §§ 16 and 19 require a notary
public to provide services after receipt of the appropriate
fees, see G. L. c. 222, § 19, and prohibit a notary public from
receiving payment in excess of the maximum fees, G. L. c. 222,
§ 16 (a) (vi). Accordingly, these sections refer not only to
§ 41, but also to the fees prescribed for a "notarial act" by
"any other general or special law or executive order." G. L.
c. 222, §§ 16 (a) (vi), 19. At the time the Governor issued
Executive Order No. 455, G. L. c. 262, § 41, was the only
statutory authority to prescribe fees chargeable by notaries
public, and it remains so today. Nonetheless, the Legislature's
inclusion of "any other" source of fee limits contemplates that
if the Legislature enacts subsequent fee limits for notarial
acts other than protests, §§ 16 and 19 will function to enforce
those new limits as well. Thus, just like the executive order
that preceded them, references to § 41 in §§ 16 and 19 simply
enforce the fee limitations established in § 41 by establishing
civil and criminal penalties for charging excessive fees for the
services enumerated in § 41. See G. L. c. 222, § 18.
The plaintiff also contends that G. L. c. 222, § 23,
evidences the Legislature's implicit understanding that G. L.
c. 262, § 41, limited fees for all notarial acts. Section 23
21
prohibits charging any fee for certain notarial acts:
"Notwithstanding [G. L. c. 262, § 41], no fee shall be charged
by a notary public to notarize a signature on an absentee ballot
identification envelope or other voting materials or on any
application or claim by a United States military veteran for a
pension, allotment, allowance, compensation, insurance or other
veterans' benefit." Because § 23 forbids fees for specific acts
unrelated to protest "[n]otwithstanding" G. L. c. 262, § 41, the
plaintiff argues that the Legislature must have understood § 41
to regulate all notarial acts, not just protest-related ones.
We have acknowledged that "[t]he use of such a 'notwithstanding'
clause clearly signals the drafter's intention that the
provisions of the 'notwithstanding' section override conflicting
provisions of any other section." Attorney Gen. v. Commissioner
of Ins., 450 Mass. 311, 319 (2008), quoting Cisneros v. Alpine
Ridge Group, 508 U.S. 10, 18 (1993). However, the
"notwithstanding" clause in § 23 does not change the complete
absence of language in G. L. c. 222 purporting to extend the
$1.25 fee limit in § 41 to all notarial acts. Further,
regardless of the Legislature's understanding of the scope of
§ 41, referencing the section in G. L. c. 222, or anywhere else,
does not and cannot have the effect of amending § 41 itself.
That is, even if the Legislature passed G. L. c. 222 with the
mistaken assumption that § 41 limits the maximum fees for all
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notarial acts, this would not broaden § 41's original scope.
See Massachusetts Comm'n Against Discrimination v. Liberty Mut.
Ins. Co., 371 Mass. 186, 194 (1976) ("[t]he views of a
subsequent [Legislature] form a hazardous basis for inferring
the intent of an earlier one" [citation omitted]).
Nothing in the language or legislative history of G. L.
c. 222, §§ 16 and 19, or any other sections of c. 222, indicates
that the Legislature intended to change the scope of the fee
structure prescribed by § 41.13
Conclusion. We answer the certified question as follows:
No -- G. L. c. 262, §§ 41 and 43, do not proscribe fees in
excess of $1.25 for notarial acts unrelated to the act of
protest, and neither Executive Order No. 455 nor G. L. c. 222
has any impact on our interpretation of either section.
The Reporter of Decisions is to furnish attested copies of
this opinion to the clerk of this court. The clerk in turn will
transmit one copy, under the seal of the court, to the clerk of
the United States District Court for the District of
Massachusetts, as the answer to the question certified, and will
also transmit a copy to each party.
13Of course, should there be a desire on the part of the
Legislature or the Governor (by way of G. L. c. 222, § 19; see
note 10, supra) to cap fees at $1.25 for all notarial acts, they
can do so directly, by way of statute or executive order,
respectively.