BILL ANALYSIS Ó AB 625 Page 1 Date of Hearing: April 2, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair AB 625 (Quirk) - As Introduced: February 20, 2013 SUBJECT : NOTARIES PUBLIC: ACCEPTANCE OF IDENTIFICATION KEY ISSUE : SHOULD A NOTARY PUBLIC BE AUTHORIZED TO REASONABLY RELY ON THE PRESENTATION OF AN INMATE IDENTIFICATION CARD ISSUED BY THE DEPARTMENT OF CORRECTIONS AND REHABILITATION ("CDCR") TO ESTABLISH THE IDENTITY OF THE INMATE DESCRIBED IN AND EXECUTING A WRITTEN INSTRUMENT? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This bill, sponsored by Justice Now, seeks to authorize notaries public to reasonably rely on the presentation of an inmate identification card issued by the Department of Corrections and Rehabilitation (CDCR), if the inmate is in custody, to establish the identity of the inmate described in and executing a written instrument. According to the sponsor, in California, roughly 195,000 children have a parent in state prison. Eighty percent of people in women's prisons are mothers. According to the California Research Bureau, approximately two-thirds of mothers in prison were the primary care provider for their children before imprisonment. In order for parents in prison to arrange temporary guardianship, approve visits for their children, and take care of a wide range of family matters, access to notary services is absolutely necessary. All people in prison have the right to access notary services. Supporters emphasize that this bill will ensure timely access to valuable notary services, while incarcerated, by allowing use of a CDCR inmate identification card. This bill will help incarcerated parents be able to visit with their children by authorizing notaries public to reasonably rely on the presentation of an inmate identification card, which is already issued by the CDCR, if the inmate is in custody, to establish the identity of the inmate. The bill will also benefit all state prisoners who must rely upon notary services. SUMMARY : Seeks to authorize notaries public to reasonably rely AB 625 Page 2 on the presentation of an inmate identification card issued by the Department of Corrections and Rehabilitation (CDCR), if the inmate is in custody, to establish the identity of the inmate described in and executing a written instrument. Specifically, this bill : 1)Authorizes a notary public to take acknowledgement of a written instrument in reasonable reliance upon the presentation of an inmate identification card issued by the CDCR, if the inmate is in custody, without requiring the identification card to be current or have been issued within the past five years, and without certain additional identifying information, including a photograph and description of the person named on it, is signed by the person, and has a serial or other identifying number. 2)Authorizes a notary public to accept as verification of an affiant's identity, when executing a jurat and the statement sworn or subscribed to is contained in a document that purports to identify the affiant, an inmate identification card issued by the CDCR, if the inmate is in custody. 3)Makes the following findings and declarations: a) The state and its counties have a financial and public safety interest in ensuring the children of people convicted of felonies and sentenced to state prison time have access to appropriate schooling and medical treatment. Eighty percent of imprisoned women are mothers and the vast majority were the primary care provider of minor children at the time of their arrest and imprisonment. These minor children's access to school and medical treatment may be unnecessarily interrupted should their incarcerated parent lack timely and affordable access to a notary necessary for them to complete paperwork to establish temporary guardianship for their children. b) The state and its counties have a financial and public safety interest in ensuring people convicted of felonies and sentenced to state prison time are able to successfully reenter their communities upon completion of their sentences and live a crime-free life. Evidence-based research demonstrates a clear connection between decreased recidivism rates and strength of familial bonds during periods of incarceration. These bonds are weakened when AB 625 Page 3 minor children are unnecessarily prevented from visiting incarcerated parents due merely to the incarcerated parents' lack of timely and affordable access to a notary public required to complete required visitation forms. c) The state has taken significant measures to assure due process and accuracy in determining the identity of people convicted of felonies and held in control of the Department of Corrections and Rehabilitation, and in tracking these individuals' appropriate identity through issuance and monitoring of state inmate identification cards. EXISTING LAW : 1)Authorizes the proof or acknowledgment of a written instrument before specified officers of the state, including notaries public. (Civil Code Sections 1181-1183.) 2)Provides that acknowledgement of a written instrument shall not be taken unless the officer taking it has satisfactory evidence that the person making the acknowledgement is the individual who is described in and who executed the instrument. (Civil Code Section 1185(a).) 3)Defines "satisfactory evidence" to mean the absence of information, evidence, or other circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be and reasonable reliance on the presentation to the officer of one of several specified documents. (Civil Code Section 1185(b)(3).) 4)Specifies that an inmate identification card that is current or has been issued within 5 years by the CDCR, if the inmate is in custody, is an allowable form of identification, for a credible witness, who, by oath or affirmation, attests to the identity of an individual executing a written instrument in the presence of, and acknowledged by, a notary public, if it contains certain identifying information, including a photograph and description of the person named on it, is signed by the person, and has a serial or other identifying number. (Civil Code Section 1185(b)(4).) 5)Requires a notary public, when executing a jurat, to administer an oath or affirmation to the affiant to determine, AB 625 Page 4 from satisfactory evidence as described in Section 1185 of the Civil Code, that the affiant is the person executing the document. In addition, the affiant must sign the document in the presence of the notary. (Gov. Code Section 8202.) 6)Authorizes a notary public to accept as verification of an affiant's identity, when executing a jurat and the statement sworn or subscribed to is contained in a document that purports to identify the affiant, either of the following: a certified copy of the person's birth certificate or an identification card or driver's license issued by the Department of Motor Vehicles. (Gov. Code Section 8230.) COMMENTS : This bill, sponsored by Justice Now, seeks to authorize notaries public to reasonably rely on the presentation of an inmate identification card issued by the CDCR, if the inmate is in custody, to establish the identity of the inmate described in and executing a written instrument. According to the sponsor of the bill, Justice Now, a legal services and human rights organization that works with people inside California women's prisons: In California, roughly 195,000 children have a parent in state prison. Eighty percent of people in women's prisons are mothers. According to the California Research Bureau, approximately two-thirds of mothers in prison were the primary care provider for their children before imprisonment. In order for parents in prison to arrange temporary guardianship, approve visits for their children, and take care of a wide range of family matters, access to notary services is absolutely necessary. All people in prison have the right to access notary services. Children of Incarcerated Parents : According to a report published in 2008 by the CDCR, titled The Master Plan for Female Offenders, incarcerated women, who are mothers, are less likely to have a partner on the outside that can help care for and raise their children. This is in stark contrast to incarcerated fathers who are more likely to have a partner that can care for and raise their children. The incarceration of a parent can be traumatic and life altering for children. Uninterrupted access to guardianship, school and medical treatment are necessary in order for a child of an incarcerated parent to retain a sense of "normalcy" in their lives. Once a parent is incarcerated, these AB 625 Page 5 arrangements can be legally made through a notary. According to materials published in 2010 by the American Bar Association, there is evidence that children who maintain close ties with their incarcerated parents experience less emotional distress and exhibit fewer problematic behaviors than children who do not have contact with their parents. Maintaining contact with parents has been shown to be particularly beneficial in cases where the parent had significant presence in the child's life prior to being incarcerated. (Margolies, Julie Kowitz and Tamar Kraft-Stolar. When "Free" Means Losing Your Mother: The Collision of Child Welfare and the Incarceration of Women in New York State. New York: Women in Prison Project, Correctional Association of New York, 2006.) Furthermore, maintaining contact with their children helps the incarcerated parent by improving the reentry process and reducing recidivism rates, which would likely benefit the child. According to the U.S. Department of Justice, Bureau of Justice Statistics, more than half of mothers and father in state prisons report having received no in-person visits from their children since their admission. In addition, parents with multiple children may receive visits from some children, but not from others. The sponsor of the bill, Justice Now, illustrates the above point with the following anecdote: A mother who was recently transferred from Valley State Prison for Women ("VSPW") to Central California Women's Facility ("CCWF") called to inform Justice Now's lawyers that she was denied a family visit in January 2013. She was pregnant while imprisoned at VSPW and gave birth in October 2012. She has not seen her newborn since he was born. Although her sister traveled for hours to bring all of the children, including her newborn, to see their mother, CDCR denied the visit because the sister failed to provide the proper notarized paperwork. This mother is working to obtain paperwork that is in compliance with CDCR requirements in order to see her children. However, it is likely that such as visit will not happen for a few more months. Inmate Identification Cards : Currently, under Title 15 of the California Code of Regulations, Section 3019, inmates must carry on their person any identification or privilege card issued for AB 625 Page 6 identification purposes. Under the current statutory scheme, an inmate identification card that is current or issued within the previous five years by the CDCR if the inmate is in custody is an allowable form of identification only if it contains certain identifying information, including a photograph and description of the person named on it, is signed by the person, and has a serial or other identifying number. This bill would make an inmate identification card presumptively an allowable form of identification, without the additional identifying information, for a credible witness to prove the identity of an individual who executes a written instrument. According to the sponsor, as it currently stands, CDCR issues a separate form of identification to inmates for notary purposes. CDCR has taken significant measures to assure due process and accuracy in determining the identity of people sentenced to prison. "As such, the process of creating and issuing additional specialized IDs is costly, unnecessary and delays access to service. By removing an unnecessary step and streamlining the process through which people in prison seek important notary services, this bill will help reduce barriers to maintaining family bonds as well as save the state money and resources." Supporters emphasize that this bill will ensure timely access to valuable notary services, while incarcerated, by allowing use of a CDCR inmate identification card. The Legal Services for Prisoners with Children writes in support of this bill because allowing notaries to accept an inmate identification card, issued by the CDCR, as a form of identification will help incarcerated parents be able to visit their children, stating: Sometimes, the child of an incarcerated parent is cared for informally by a relative or friend without official documentation. The law permits this arrangement. However, CDCR will not allow such a child to visit his or her incarcerated parent unless the incarcerated parent executes a document giving formal legal custody to someone. This mandatory document, entitled "Temporary Custody Arrangement/Power of Attorney", must be notarized. Until recently, notaries were using the CDCR-issued inmate [identification] card to establish a prisoner's identity. AB 625 Page 7 This card has recently been deemed by the CDCR as not qualifying as proper identification for notaries. CDCR is apparently in the process of creating a notary-acceptable identification card, which it will charge prisoners for. Not only must prisoners pay for notary services at $10 per document, they will also have to pay an [undetermined] amount for an identification card. Ten dollars is a small fortune for many prisoners?. This bill will benefit those incarcerated parents and their minor children for whom formal legal custody arrangements have not been established. This bill will help incarcerated parents visit with their children by authorizing notaries public to reasonably rely on the presentation of an inmate identification card, which is already issued by the CDCR, if the inmate is in custody, to establish the identity of the inmate described in and executing the written instrument. This bill will also benefit all state prisoners who must rely upon notary services. Prior Related Legislation : AB 2452 (Davis), Chap. 67 (Stats. 2008) added specified governmental employee identification cards as an allowable form of identification for a credible witness to prove the identity of an individual who executes a written instrument. AB 2420 (McClintock), Chap. 307 (Stats. 1987) included within the documents that established "satisfactory evidence" an inmate identification card issued by the Department of Corrections and Rehabilitation, if the inmate is in custody. REGISTERED SUPPORT/OPPOSITION: Support Justice Now (sponsor) American Civil Liberties Union of California (ACLU) California Coalition for Women Prisoners Get On the Bus Legal Services for Prisoners with Children Women's Foundation for California Opposition AB 625 Page 8 None on file Analysis Prepared by : Drew Liebert and Rebecca Kramer / JUD. / (916) 319-2334