BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1036 (Quirk)
Version: April 9, 2015
Hearing Date: June 9, 2015
Fiscal: No
Urgency: No
TMW
SUBJECT
Notaries public: acceptance of identification
DESCRIPTION
This bill would authorize a notary public to rely on any inmate
identification issued by a sheriff's department to prove the
identity of an individual in custody in a local detention
facility.
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. (Gov. Code Sec. 8205.)
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
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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. (Civ.
Code Sec. 1185.) Certain government documents that are current
or have been issued within five years, such as a California
driver's license or identification (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.
Prior to 2014, incarcerated individuals faced challenges in
performing a number of tasks, including getting needed
authorizations to permit a minor child (such as a son or
daughter) to visit them while in prison, as a result of a
notary public's inability to accept a California Department of
Corrections and Rehabilitation (CDCR) ID card as proof of
identity. As CDCR requires minor children visiting a prison
inmate to be accompanied by someone other than his/her parent or
legal guardian, in addition to the certified copy of the minor
children's birth certificate, the adult must also bring a
notarized written consent authorization form signed by the minor
children's parent or legal guardian expressly giving permission
for the minor children to visit a prisoner. Consequently, an
inmate whose child was living with a friend or relative during a
period of incarceration was prevented from seeing that child
until he or she was able to secure proper ID to present to a
notary. To address this problem, AB 625 (Quirk, Chapter 159,
Statutes of 2013) authorized the notary public to rely on
CDCR-issued ID cards to be accepted for notarizing documents
signed by state prisoners.
Inmates in local county jails also need notarial services for
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the same reasons as state prisoners. Accordingly, this bill
would authorize a notary public to rely on ID issued by a
sheriff's department for county inmates when notarizing
documents signed by local county jail inmates.
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
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:
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; or
an inmate identification card issued by the Department of
Corrections and Rehabilitation, if the inmate is in custody in
prison. (Civ. Code Sec. 1185(b)(3).)
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, and, in the event that the document is a passport, has
been stamped by the United States Citizenship and Immigration
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Services of the Department of Homeland Security:
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
United States; or
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.
This bill would add any form of inmate identification issued by
a sheriff's department to the list of proper identifications on
which an officer may reasonably rely, provided that the inmate
seeking to establish identity with the card is in custody in a
local detention facility.
COMMENT
1. Stated need for the bill
The author writes:
Identification cards (IDs) or driver licenses issued by the
Department of Motor Vehicles, passports issued by the US
Department of State[,] and inmate identification cards issued
by the [California] Department of Corrections and
Rehabilitation (CDCR) for inmates in prison are the only forms
of documents presumptively valid as identification for use by
notaries. Notaries can accept other forms of IDs only IF the
following elements are met: the ID was issued within the last
5 years, it contains a picture and description of the person
named in it, it is signed by that person and has some
identifying number.
Because county jails fail to meet the above requirements,
inmates seeking notary services should be issued an additional
form of ID, however, none are. Access to a notary is an
inmate's legal right, and inmates often need access to
notaries for services that include establishing temporary
custody of children, power of attorney for financial and
health care matters, and giving authority to a trusted adult
to bring their children to the jail for a visit.
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AB 1036 adds county jail inmate IDs to the list of valid forms
of ID accepted by notaries for notary services. As such, an
additional ID would be unnecessary and would not delay access
to service.
2. Increased need for county jail inmate notary services
As discussed above, AB 625 (Quirk, Chapter 159, Statutes of
2013) authorized notary publics to rely on CDCR-issued IDs in
order to establish the identity of a person executing a document
to be notarized. Around the same time, the United States
Supreme Court decision in Brown v. Plata (2011) 131 S. Ct. 1910
required California to significantly reduce its prison
population in order to remedy the lack of care for prison
inmates with serious medical and psychological conditions. One
month before the court's decision, AB 109 (Committee on Budget,
Chapter 15, Statutes of 2011) enacted the Public Safety
Realignment Act and, among other things, required the transfer
of large numbers of convicted felons from the state prison and
parole system to the state's 58 county jails.
According to the California Research Bureau, approximately
97,000 California children have a parent in county jail. The
Office of the Sheriff, City and County of San Francisco, in
support, states that:
There are tens of thousands of men and women incarcerated in
California's county jails today. Many of these men and women
are parents and breadwinners for their family who need to make
important decisions during the time they are away from home.
These decisions concern the care and welfare of their
children, financial matters surrounding family housing and
maintenance, and immigration issues. In many instances proof
of an incarcerated person's asset to a decision is legally
required before an important action can be taken, as is the
case when enrolling a child in school or when attempting to
travel outside of the country with a child.
If available, notarial services can be used by a county jail
inmate to formally acknowledge these important decisions.
Notarial services can also operate to allow an inmate to
designate a trusted agent to make these important decisions in
their absence. This crucial bridge can operate to save a
prisoner's housing or to authorize a child's medical care.
Unfortunately, however, current California law precludes many
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of these men and women from being able to access these vital
services.
State prison inmates are able to use their CDCR-issued ID cards
when using notary public services. Notably, if those inmates
are transferred to a local county jail, they lose the ability to
utilize notary public services because there is no way for these
inmates to prove their identity. This bill seeks to extend
notary services access of state prison inmates to county jail
inmates by authorizing a notary public to use a sheriff-issued
ID to verify an inmate's identity while the inmate is in
custody.
3. Use of IDs in California county jails
Inmate identification cards are critical to the internal
operations of a county jail. When an individual is received by
a county jail, he or she is 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 jail services, including the administration of
medication at a jail dispensary, and the distribution of
property such as jail-issued clothing.
Inmates are not permitted to bring a second form of
identification into a correctional facility. The National
Notary Association, in support, states that "[o]ver the years
our association has regularly fielded complaints from members
who travel to county facilities to perform notarizations, only
to find the inmate does not carry the proper identification to
satisfy the legal requirement for satisfactory evidence of
identity. Without proper ID, notaries must refuse to perform
the notarization. This has resulted in the denial of notarial
services to inmates needing powers of attorney, family
visitation forms, and other important documents notarized."
The California Association of Licensed Investigators, Inc., in
support, argues that "[s]heriff's departments take significant
measures to ensure accuracy in determining the identity of
inmates, and there are mechanisms that Sheriffs have established
to deter the theft of IDs. As such, an additional ID is
unnecessary and delays access to service. This bill will remove
an unnecessary step and streamline the process by which inmates
seek important notary services." Further, Legal Services for
Prisoners with Children, also in support, asserts that "[t]here
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is no reason to distrust the accuracy of a jail-issued
identification card. Jails routinely take fingerprints to
[ensure] the identities of the people they incarcerate."
4. Impact of notarization ID requirements on incarcerated parents
and the children of incarcerated parents
According to the California Research Bureau, approximately
97,000 California children have a parent in county jail. The
author notes that "[f]athers are more likely to have a partner
to care for their children when incarcerated. Unfortunately,
mothers are less likely to have a partner on the outside who can
care and raise their child once in jail. The incarceration of a
parent can be traumatic and life altering. Uninterrupted access
to guardianship, school and medical treatment is beneficial in
helping such children retain a sense of 'normality' in their
lives. Once a parent is incarcerated, these arrangements can be
made via the services of a notary."
The Office of the District Attorney, City and County of San
Francisco, in support, further asserts that "[o]ne way we can
help ensure successful reentry [of jail inmates into society] is
to remove barriers that limit an inmate's ability to manage [his
or her] personal affairs on the outside. This can help them
maintain a supportive environment to return to once they have
completed their term of imprisonment. This bill ensures inmates
have a greater opportunity to develop and maintain normalcy for
themselves and their children, which can support their reentry
to the community and improve recidivism rates.
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 Incarcerated Parents (Mar. 2000)
[as of May 29, 2015]
p. 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., p. 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.
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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, p. 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. Although visitation requirements
may vary from county to county, the Los Angeles County Sheriff's
Department rules for visitation by a minor child require the
written notarized consent of a parent or legal guardian to be
presented for each visit, and the minor child must be
accompanied by a responsible adult who is also approved to
visit. 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.
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 the county jail
to issue a second inmate ID, which is the current practice. 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.
5. Application only to inmates "in custody"
This bill would only permit inmates "in custody in a local
detention facility" 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 local county jail, 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 limits its efficacy to inmates "in
custody in a local detention facility," and because local county
sheriff departments do not allow inmates to retain inmate ID
cards once released from prison, this bill is unlikely to have
any significant impact on the larger practice of California's
notaries public.
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Support : California Association of Licensed Investigators;
Legal Services for Prisoners with Children; National Notary
Association; Office of the District Attorney, City and County of
San Francisco; Office of the Public Defender, City and County of
San Francisco; Office of the Sheriff, City and County of San
Francisco
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 625 (Quirk, Chapter 159, Statutes of 2013) See Background;
Comment 2.
AB 109 (Committee on Budget, Chapter 15, Statutes of 2011) See
Comment 2.
AB 442 (Arambula, 2009) would have amended Civil Code Section
1185 to add a matrícula consular, issued through a consulate
office of the Mexican Government, as an allowable form of
identification (ID) to prove the identity of an individual who
executes a written instrument. AB 442 was vetoed by Governor
Schwarzenegger because the Civil Code already provided for more
secure forms of ID than the matrícula consular - including
Mexican driver's licenses and passports - to identify Mexican
nationals, and California notaries should not be required to
accept a form of ID that the Federal Bureau of Investigation and
the U.S. Department of Justice continue to consider
untrustworthy.
SB 461 (Correa, 2009) would have amended Civil Code Section 1185
to add a matrícula 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. SB 461 died in the Senate
Judiciary Committee.
AB 2452 (Davis, Chapter 67, Statutes of 2008) added specified
government employee ID cards as an allowable form of ID to prove
the identity of an individual who executes a written instrument
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before a notary public. AB 2452 also deleted a provision
allowing a witness to an individual's ID 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. AB 886
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 (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.
AB 2420 (McClintock, Chapter 307, Statutes of 1987) included
within the documents that established "satisfactory evidence"
for notarization an inmate ID card issued by the Department of
Corrections, if the inmate is in custody.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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