BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 625 (Quirk)
As Amended May 24, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
TH
SUBJECT
Notaries Public: Acceptance of Identification
DESCRIPTION
Existing law prohibits a notary public from notarizing an
instrument unless he or she has obtained satisfactory evidence
that the person making an acknowledgment to be notarized is the
individual who is described in and who executed the instrument.
This bill would add inmate identification (ID) cards issued by
the California Department of Corrections and Rehabilitation
(CDCR) to the list of documents presumed to prove the identity
of an incarcerated individual who executes a written instrument.
BACKGROUND
A notary public is a public officer appointed and commissioned
by the Secretary of State to serve the public in non-contentious
matters generally concerning estates, deeds, powers-of-attorney,
foreign and international business, and other written
instruments. Occasionally, an individual who is party to a more
sensitive formal agreement, such as a child custody agreement, a
confidential marriage license, or an advance healthcare
directive, must have the agreement notarized before it can enter
into force. A notary's main functions are to take
acknowledgements of various written instruments, administer
oaths and affirmations, take depositions and affidavits, certify
copies of powers of attorney under the Probate Code, demand
acceptance and payment of foreign and inland bills of exchange
or promissory notes, and to protest nonpayment and nonacceptance
of bills and notes.
(more)
AB 625 (Quirk)
Page 2 of ?
A certificate of acknowledgment is the form most frequently
completed by a notary public. In the certificate of
acknowledgment, the notary public certifies: 1) that the signer
personally appeared before the notary public on the date
indicated in the county indicated; 2) the identity of the
signer; and 3) that the signer acknowledged executing the
document.
Under current law, the identity of the signer of an
acknowledgment may be established by the notary public's
reasonable reliance on any one of a number of documents.
Certain government documents that are current or have been
issued within five years, such as a California driver's license
or ID card, or a U.S. passport, provide sufficient proof of
identity without having to meet separately specified criteria.
Other documents, including a foreign passport, a government
employee ID card, and a driver's license issued by another state
or a Canadian or Mexican public agency authorized to issue
driver's licenses, must meet certain threshold criteria before a
notary can reasonably rely on them to establish identity.
Documents within this latter category must contain a photograph,
description of the person, signature of the person, and an
identifying number, in order to constitute a valid proof of
identity for obtaining notarization of an instrument.
Current law does not allow a notary public to rely on an inmate
ID card issued by the California Department of Corrections and
Rehabilitation to establish an inmate's identity for the purpose
of notarizing a document. This restriction in existing law
impairs the ability of incarcerated individuals without
alternate acceptable forms of ID from, among other things,
obtaining the proper authorizations to permit a minor child
(such as a son or daughter) to visit them while in prison.
Accordingly, this bill would add an inmate identification card
to the list of valid identification documents specified in law
as providing sufficient proof of identity for the purpose of
obtaining notarization of a written instrument without having to
meet separately specified criteria.
CHANGES TO EXISTING LAW
Existing law authorizes the proof or acknowledgment of written
instruments before specified officers of the state, including
notaries public. (Civ. Code Secs. 1180-1183.)
Existing law provides that the acknowledgment of an instrument
AB 625 (Quirk)
Page 3 of ?
may not be taken unless the officer (notary public) taking it
has satisfactory evidence that the person making the
acknowledgment is the individual who is described in and who
executed the instrument. (Civ. Code Sec. 1185(a).)
Existing law provides that "satisfactory evidence" means the
absence of any 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 plus the use of any one of various specified ways of
establishing the proper identity of the person making the
acknowledgment (such as the oath or affirmation of a credible
witness or the presentation of a specified identifying
document). (Civ. Code Sec. 1185(b).)
Existing law provides that the officer may reasonably rely on
the presentation of any one of the following, provided that the
document is current or has been issued within five years and
contains a photograph and description of the person named on it,
is signed by the person, and bears a serial or other identifying
number:
A passport issued by a foreign government.
A driver's license issued by a state other than California or
by a Canadian or Mexican public agency authorized to issue
driver's licenses.
An ID card issued by a state other than California.
An ID card issued by any branch of the Armed Forces of the
U.S.
An inmate ID card issued on or after January 1, 1988, by the
Department of Corrections and Rehabilitation, if the inmate is
in custody.
An employee ID card issued by an agency or office of the State
of California, or by an agency or office of a city, county, or
city and county in this state.
An inmate ID card issued prior to January 1, 1988, issued by
the Department of Corrections and Rehabilitation, if the
inmate is in custody. (Civ. Code Sec. 1185(b)(4).)
Existing law provides that the officer may reasonably rely on
the presentation of any one of the following, provided that the
document is current or has been issued within five years:
An identification card or driver's license issued by the
California Department of Motor Vehicles.
A passport issued by the Department of State of the United
States. (Civ. Code Sec. 1185(b)(3).)
AB 625 (Quirk)
Page 4 of ?
Existing law also provides that a notary public shall require as
a condition to executing a jurat (a certification added to an
affidavit or deposition) that the affiant verify the birthdate
or age contained in the statement by showing either (1) a
certified copy of the affiant's birth certificate, or (2) an
identification card or driver's license issued by the California
Department of Motor Vehicles, when the statement sworn or
subscribed to is contained in a document purporting to identify
the affiant, and includes the birthdate or age of the person and
a purported photograph or finger or thumbprint of the person so
swearing or subscribing. (Gov. Code Sec. 8230.)
This bill would add an inmate identification card issued by the
Department of Corrections and Rehabilitation to the list of
proper identifications specified in Civil Code Section
1185(b)(3) that an officer may reasonably rely on, provided that
the inmate seeking to establish identity with the card is in
custody.
This bill would eliminate the requirement that an inmate
identification card must contain a photograph and description of
the person named on it, be signed by the person, or bear a
serial or other identifying number, in order to serve as
satisfactory evidence of identity.
This bill would also add an inmate identification card to the
list of proper identifications specified in Government Code
Section 8230 that an officer may reasonably rely on in executing
a jurat that purports to identify the affiant and verify the
affiant's birthdate or age, provided that the affiant seeking to
establish identity with the card is an inmate in custody, and
provided that the card contains the inmate's date of birth.
This bill would make findings and declarations related to the
importance of maintaining familial bonds between children and
parents during periods of incarceration.
COMMENT
1. Stated need for the bill
The author writes:
The IDs the California Department of Corrections and
Rehabilitation (CDCR) issues to prisoners do not meet all of
the requirements set out in Civil Code Section 1185.
Prisoners have a legal right to seek the services provided by
AB 625 (Quirk)
Page 5 of ?
licensed notaries. As such, CDCR must issue inmates a
secondary form of ID that will be accepted as presumptively
valid by notaries.
Inmates often need access to notaries for services that
include the following:
Temporary custody . A "temporary custody" form must be
filled and notarized that will give temporary custody to an
appointed caregiver until the parent is released from
prison. This allows the caregiver to provide the child
with uninterrupted care.
Visitation . Parents are not allowed to have their
children visit without CDCR's "Written Consent for
Notification" form being notarized.
Birth Certificates . A request for a birth certificate
that is done [by] mail, must be notarized. Legal guardians
must present a certified birth certificate to the prison
for any child they bring to visit with an imprisoned
parent.
Power of Attorney: Financial . Many people in prison
wish to complete this form to ensure their financial
matters are handled properly while in prison and to clearly
indicate who they would like to make financial
decisions/actions for them. This includes matters
regarding their bank account and property.
Access to a notary is an inmate's legal right, and CDCR goes
to great length[s] to ensure that access is obtained in a
reasonable manner. Additionally, CDCR has taken significant
measures to assure due process and accuracy in determining the
identity of people sentenced to prison. As such, an
additional ID is unnecessary and can delay access to service.
2. Use of IDs in California prisons
According to CDCR, inmate identification cards are critical to
the internal operations of a correctional facility. When an
individual is received by a correctional facility, they are
issued an inmate ID and are required to wear it on their outer
garment at all times. Inmate ID cards and the information
displayed on them are used in the delivery of several key prison
services, including the administration of medication at a prison
dispensary, and the distribution of property such as prison
issued clothing. Title 15 of the California Code of Regulations
provides that:
AB 625 (Quirk)
Page 6 of ?
Inmates must carry on their person any identification card
issued for identification purposes, in accordance with
institution procedures. Inmates must not mutilate or
destroy such cards nor possess the card of another inmate.
An inmate must surrender his or her identification card or
cards at the request of any employee. Unless a card is
being officially recalled, the card(s) will be promptly
returned to the inmate when staff's use of the card has
been accomplished. An inmate may be charged for
replacement of a deliberately mutilated, lost or destroyed
card in accordance with section 3011. (Cal. Admin. Code
Tit. 15, Sec. 3019.)
Inmates are not permitted to bring a second form of
identification into a correctional facility. CDCR states that
it would be impractical to place all of the information
presently required under Civil Code Section 1185 onto an inmate
ID card. Thus, when an inmate needs to have a document
notarized, they are issued a second form of identification that
meets the requirements of Section 1185.
This bill would amend Civil Code Section 1185 and a parallel
provision in Government Code Section 8230 to enable notaries
public to accept inmate ID cards held by inmates in custody of
CDCR as presumptively valid forms of ID for the purpose of
notarizing a written instrument. According to the sponsor:
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.
3. Impact of notarization ID requirements on incarcerated parents
and the children of incarcerated parents
According to the Department of Corrections and Rehabilitation,
in 2001 California's prisons held an estimated 10,300 mothers
and 84,000 fathers. (CDCR, The Master Plan for Female
Offenders: A Blueprint for Gender-Responsive Rehabilitation
[as of May 22, 2013], pg. 63.) Collectively, these parents
had an estimated 192,000 children. As would be expected,
available research indicates that incarceration exacts a heavy
toll on familial bonds. In particular, CDCR has found that
incarcerated mothers and the children of incarcerated mothers
are more severely impacted by the dislocating effects of
incarceration than offenders who are fathers. The impacts
brought by incarceration, and in particular the lack of contact
between mother and child, can result in increased rates of
recidivism, can increase the likelihood that parent and child
will be caught up in a cycle of intergenerational incarceration,
and can cause lifelong damage to family bonds and familial
support systems.
In California, the average female offender is in her late
thirties, has been a victim of sexual or physical abuse, has
mental health problems, and was most likely sent to prison for
using drugs or stealing to support a drug habit. (The Master
Plan for Female Offenders, pg. 11.) She is also more than
likely a mother and frequently performs the role of the primary
caregiver to young children. (Id.) About half of the women
incarcerated in California were living with their children prior
to incarceration. (Id., pg. 14.) CDCR has found that "[w]hen
women are imprisoned the family appears critical:"
Significant stressors at this time include worry, pain, and
anxiety over separation from children; concern over children's
well-being; their placement in foster homes, social services
or adoption; and, concern over legal rights. Evidence is
accumulating [that suggests] this anxiety significantly
impacts both women's institutional adjustment and their
post-release behavior. Most female offenders are mothers and
visits with their children can be key to motivating them to
change their behavior and eventually reduce their risk of
recidivism. (Id., pgs. 13-14.)
Similarly, the incarceration of a parent, and in particular a
mother, can have a "traumatic and life altering" effect on
children. (The Master Plan for Female Offenders, pg. 63.) CDCR
has found that incarcerated mothers, unlike incarcerated
fathers, are "less likely to have a partner on the outside to
raise these children." (Id.) Consequently, children whose
parents have been incarcerated often "experienc[e] the trauma of
sudden separation from their sole caregiver, and most are
vulnerable to feelings of fear, anxiety, anger, sadness,
depression and guilt." (California Research Bureau, Children of
AB 625 (Quirk)
Page 8 of ?
Incarcerated Parents
[as of May 23, 2013], pg. 1.) This trauma can result in
"negative behavioral manifestations" including "sadness,
withdrawal, low self-esteem, decline in school performance,
truancy, and use of drugs or alcohol and aggression." (Id., pg.
4.) As with the trauma experienced by incarcerated mothers, the
negative impacts on children resulting from a parent's
incarceration not only damages the individual, but exacts a
substantial public cost on families, communities, and civic
institutions.
Incarceration makes it difficult for parents to maintain contact
with their children, and research indicates that "[m]ore than
half of incarcerated mothers do not receive any visits from
their children while they are in prison." (Children of
Incarcerated Parents, pg. 5.) "The single most significant
reason for lack of contact is the children's distance from their
mothers' prisons, many of which are located far from major
population centers." (Id.) However, overly burdensome inmate ID
requirements can also preclude these critical visits between
mothers and their children. Existing CDCR rules state that if a
minor child visiting an inmate "is accompanied by someone other
than his/her parent or legal guardian, in addition to the
certified copy of the minor child(ren)'s birth certificate, the
adult must also bring a notarized written consent authorization
form . . . signed by the minor child(ren)'s parent or legal
guardian expressly giving permission for the minor child(ren) to
visit a prisoner." (CDCR, Visiting a Friend or Loved One in
Prison
[as
of May 20, 2013].) Thus, an inmate whose child is living with a
friend or relative during a period of incarceration may be
precluded from seeing that child until such a time that he or
she secures proper identification to present to a notary.
Justice Now, the sponsor of this bill, provides the following
example of the negative impact that existing notarization
requirements can have on prisoners:
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
of 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
AB 625 (Quirk)
Page 9 of ?
denied a 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 a visit will not
happen for a few more months.
This bill would significantly ease the ability of children to
visit incarcerated parents by permitting inmates to obtain
needed notarizations without having to wait for CDCR to issue a
second inmate ID. In so doing, it would help parents and
children maintain the familial bonds that are so critical to the
well-being of family members both inside and outside of prison.
4. Security of inmate IDs
CDCR does not publicly disclose information concerning the basic
layout, contents, or security features of its inmate ID cards.
Staff notes that it is unclear whether inmate IDs are as secure
as the other forms of identification that an officer may
reasonably rely on when establishing the identity of a person
seeking notary services, such as a California Driver's License
or U.S. Passport. Despite this uncertainty, restrictions
provided in this bill and existing CDCR operating practices
alleviate concerns that these IDs could be used to fraudulently
notarize written instruments. First, the bill specifies that an
inmate ID may only be used to establish identity when an inmate
is "in custody." Except as noted below, notaries should have no
trouble determining whether or not an individual is "in custody"
so as to allow the use of this ID. Further, the nature of the
custodial setting should inhibit the ability of any person to
produce fraudulent inmate IDs while incarcerated, and the fact
that CDCR does not allow inmates to retain their prison IDs upon
leaving prison undercuts the risk that these IDs could be used
to commit fraud in the larger community.
5. Application only to inmates "in custody"
This bill would only permit inmates "in custody" of CDCR to use
their inmate ID cards to establish their identity in order to
obtain notary services. In most instances, the changes to
existing law made under this bill would only apply to inmates
confined to a state prison, and as a result the provisions of
this bill would likely apply only to those notaries who provide
services at these facilities. Because the bill's language
AB 625 (Quirk)
Page 10 of ?
limits its efficacy to inmates "in custody," and because CDCR
does not allow inmates to retain inmate ID cards once released
from prison, AB 625 is unlikely to have any significant impact
on the larger practice of California's notaries public.
However, the bill does not define the phrase "in custody," nor
is that term defined in existing provisions of the Civil or
Government Code. Consequently, it is not clear whether an
individual who is "in custody" for purposes of habeas corpus
proceedings, including those on probation or released on their
own recognizance, would be "in custody" under this bill.
Similarly, it is unclear whether an inmate would be "in custody"
under the terms of this bill if they are housed outside of a
correctional facility, such as participants in the
community-based Alternative Custody Program authorized by Penal
Code Section 1170.05. This is significant because alternatively
housed inmates either retain prison-issued inmate ID cards while
in alternative housing or are issued new IDs specific to their
particular alternative housing program. The ambiguous nature of
the phrase "in custody" may confuse a notary not familiar with a
CDCR inmate ID if an individual claiming to be "in custody"
presents an unfamiliar ID and attempts to establish identity
relying on the proposed amendments to Section 1185.
The author offers the following amendments to clarify the intent
to apply this bill only to inmates who, because of their housing
by CDCR, are precluded from leaving a correctional facility to
obtain an alternate qualifying form of identification.
Author's amendment
On page 4, line 9, before the period, add "in prison"
On page 5, line 15, before the period, add "in prison"
Regarding the risk of confusion to notaries unfamiliar with CDCR
inmate IDs, Dylan F. Stute, a notary public writing in support
of this bill, suggests the addition of language "enumerating the
circumstances under which such identification might be used."
Specifically, he recommends specifying that inmate ID cards be
allowed for notarization purposes under applicable law "if the
notarization concerns a matter relative to the guardianship of a
minor child or the visitation rights of the inmate's minor
children, as defined in the Family Code." Unfortunately, such
language would unduly restrict an inmate's ability to obtain
notary services relating to a number of subjects that they
currently receive services for, such as executing powers of
AB 625 (Quirk)
Page 11 of ?
attorney. Further, an amendment of this nature would put a
notary in the difficult position of having to discern what forms
of ID are allowable based on the subject of the instrument to be
notarized. No existing provision in law burdens a notary with
having to determine the subject matter of a document prior to
notarizing it, and it is unclear whether current training and
education requirements would properly prepare notaries to carry
out this task.
Support : American Civil Liberties Union of California;
California Association of Licensed Investigators; California
Catholic Conference of Bishops; California Coalition for Women
Prisoners; Californians United for a Responsible Budget; Dylan
F. Stute, individual letter (with or without recommended
amendment); Get on the Bus; Legal Services for Prisoners with
Children; Women's Foundation of California
Opposition : None Known
HISTORY
Source : Justice Now
Related Pending Legislation : None Known
Prior Legislation :
AB 442 (Arambula, 2009) would have amended Civil Code Section
1185 to add a Matricula Consular, issued through a consulate
office of the Mexican Government, as an allowable form of
identification to prove the identity of an individual who
executes a written instrument. This bill was vetoed by the
Governor.
SB 461 (Correa, 2009) would have amended Civil Code Section 1185
to add a Matricula Consular, issued through a consulate office
of the Mexican Government, as an allowable form of
identification to prove the identity of an individual who
executes a written instrument. This bill died in the Senate
Judiciary Committee.
AB 2452 (Davis, Chapter 67, Statutes of 2008) added specified
government employee identification cards as an allowable form of
identification to prove the identity of an individual who
executes a written instrument before a notary public. This bill
AB 625 (Quirk)
Page 12 of ?
also deleted a provision allowing a witness to an individual's
identification who is personally known to the notary to serve as
evidence for an acknowledgment by a notary public.
AB 886 (Runner, Chapter 399, Statutes of 2007) requires, among
other things, notaries public to determine by satisfactory
evidence only that a person acknowledging an instrument is the
individual who is described in and who signed the instrument,
and to certify the document under penalty of perjury. This bill
also requires notaries to obtain the thumbprint of a party
signing a document where the document to be notarized is a deed,
quitclaim deed, deed of trust affecting real property, or a
power of attorney.
AB 2062 (Nakano, Chapter 539, Statutes of 2004) requires a
notary public to use a jurat (i.e., an official declaration
similar to an affidavit) form to certify the identity of persons
signing documents.
AB 1090 (Tucker, Chapter 1044, Statutes of 1993), among other
things, revised the criteria for determining whether an
individual has presented satisfactory evidence of identity for a
notary public to take an acknowledgment of an instrument.
SCR 33 (McCorquodale, Chapter 129, Statutes of 1991) established
a commission to study methods of improving the efficient use of
female prisoner housing capacity and alternatives to state
prison incarceration for nonviolent female offenders. Studies
carried out in response to SCR 33 helped to identify the impact
that familial separation has on children and incarcerated
parents.
AB 2420 (McClintock, Chapter 307, Statutes of 1987) included
within the documents that established "satisfactory evidence"
for notarization an inmate identification card issued by the
Department of Corrections, if the inmate is in custody.
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
**************
AB 625 (Quirk)
Page 13 of ?