[(602) 542-6187] called and reiterated that a Certificate of Limited Partnership must have the original signature of the signer and that a photocopy is not acceptable. I asked why the Arizona Secretary of State would not accept a photocopy of a signature and she said, “that’s the way we have always done it.” At first she said an original signature was needed on the Certificate of Limited Partnership because it was a contract. I told her that the document was not a contract and even if it was, Arizona law recognizes and enforces contracts with photocopied signatures. I also pointed out to her that the Arizona Corporation Commission does not require original signatures on any document related to forming Arizona corporations and limited liability companies, but Ms. Cota said the Arizona Secretary of State didn’t care what the ACC does because the ASS has its own rules. I asked Ms. Cota if the position of the Arizona Secretary of State was based on Arizona law, but she could not give me a statute on point.
I asked Ms. Cota if the Arizona Secretary of State had an in house state lawyer who advised the Arizona Secretary of State with respect to complying with Arizona law. She said no, the Arizona Secretary of State uses the Arizona Attorney General, but no specific attorney. I was surprised to hear that the Arizona Secretary of State did not have an in house lawyer. Maybe that is one reason the Arizona Secretary of State is unaware of Arizona statutory law applicable to forming Arizona limited partnerships.
Arizona law requires that Arizona limited partnerships file a Certificate of Limited Partnership with the Arizona Secretary of State to form the partnership. Arizona Revised Statues Section 29-308.A states:
In order to form a limited partnership a certificate of limited partnership shall be executed and filed in the office of the secretary of state. The certificate shall set forth all of the following:
- The name of the limited partnership.
- The address of the office and the name and address of the agent for service of process required to be maintained by section 29-304.
- The name and the business address of each general partner.
- The latest date, if any, on which the limited partnership must dissolve.
- Any other matters the general partners determine to include therein.
Note the statute does not say that the Certificate of Limited Partnership must contain “an original signature.” The original signature requirement has been invented by the Arizona Secretary of State. The word “executed is not defined in Arizona Revised Statutes Section 29-301, the statute that contains definitions applicable to Arizona LPs.
Arizona Revised Statues Section 29-311.A states: “Each certificate required by this article to be filed in the office of the secretary of state shall be executed in the following manner: . . . An original certificate of limited partnership shall be signed by all general partners.” This statute refers to “an original certificate,” whatever that is. Note that this statues DOES NOT say that the signature of the general partners MUST be an “ORIGINAL” signature. If the Arizona legislature had wanted the Arizona Secretary of State to require “original signatures” on the Certificate of Limited Partnership, it would have included that word in the statute. The Arizona Secretary of State has simply made up the requirement that certificates of limited partnerships must have original signatures of the general partners.
It gets worse. The Arizona Secretary of State is blatantly and intentionally violating clearly stated Arizona law. Arizona Revised Statutes Section 29-313.A states:
Two signed copies of the certificate of limited partnership . . . shall be delivered to the secretary of state.
The public is directed by this statute to deliver TWO SIGNED COPIES of the certificate to the Arizona Secretary of State. It is not possible for a document with original signatures to be a copy. A copy by definition cannot be an original. The Merriam-Webster dictionary defines “copy” as: (i) “an imitation, transcript, or reproduction of an original work,” or (ii) “one of a series of especially mechanical reproductions of an original impression.” The public must make two copies of the certificate with the original signature on it and deliver the two copies to the Arizona Corporation Commission for filing. Arizona law could not be clearer. I asked Ms. Cota how the Arizona Secretary of State could ignore Section 29-313.A’s express statement that the public must deliver copies of the certificate to the Arizona Secretary of State. She said because the statute does not say “photo” copy. Huh? Sorry, but you lost me Ms. Cota.
The Arizona Secretary of State is stuck in the early 20th century. The Arizona Secretary of State willfully ignores the clear and express Arizona law set forth in Section 29-313.A. The most troubling aspect of my encounter with the Arizona Secretary of State’s office is that the Arizona Secretary of State simply is not interested in helping the citizens of the State of Arizona. It’s an old school government bureaucracy that sets arbitrary rules and could care less about the affect of its rules on the public.
Contrast the Arizona Secretary of State’s office with the Arizona Corporation Commission. The vast majority of entities formed in Arizona are formed with the Arizona Corporation Commission. The Arizona Corporation Commission accepts signatures on documents that are photocopies, other types of copies and faxed copies. The ACC understands we are in the 21st century and that there have been advances in technology that require it to change old ways of doing business. Also, my experience with the Arizona Corporation Commission is that it is very much interested in helping the public. Many times the staff of the Arizona Corporation Commission has gone out of its way to help me and my clients. Unlike the Arizona Secretary of State, the Arizona Corporation Commission wants to serve the public, not create problems for the public.
The Arizona Corporation Commission does have an in house lawyer named Patricia Barfield who talks to the public about legal issues affecting the Arizona Corporation Commission and its job of regulating Arizona corporations and limited liability companies. Ms. Barfield advises the Arizona Corporation Commission with respect to Arizona law. Recently the Arizona Corporation Commission announced that Articles of Organization for an Arizona limited liability company could not list a husband and wife as Homer Simpson and Marge Simpson, 2424 Linger Lane, Springfield, IL, but instead must list them as: Homer Simpson, 2424 Linger Lane, Springfield, IL, and Marge Simpson, 2424 Linger Lane, Springfield, IL. I asked Ms. Barfield if Arizona law required the change. She contemplated the issue for a few weeks then sent an email to me and others that said the Arizona Corporation Commission reversed its opinion and that the public could list members of an LLC in the Articles of Organization however it desired. Bottom line was Arizona statutes did not require the change and the Arizona Corporation Commission’s counsel recognized that fact.