BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1036| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: AB 1036 Author: Quirk (D) Amended: 4/9/15 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 6/9/15 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski ASSEMBLY FLOOR: 79-0, 5/11/15 (Consent) - See last page for vote SUBJECT: Notaries public: acceptance of identification SOURCE: Author DIGEST: This bill authorizes a notary public to rely on any inmate identification (ID) issued by a sheriff's department to prove the identity of an individual in custody in a local detention facility. ANALYSIS: Existing law: 1)Authorizes the proof or acknowledgment of written instruments before specified officers of the state, including notaries public. 2)Provides that the acknowledgment of an instrument may not be taken unless the officer (notary public) taking it has AB 1036 Page 2 satisfactory evidence that the person making the acknowledgment is the individual who is described in and who executed the instrument. 3)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). 4)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 ID 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 ID card issued by the California Department of Corrections and Rehabilitation (CDCR), if the inmate is in custody in prison. 1)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 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 AB 1036 Page 3 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 adds any form of inmate ID issued by a sheriff's department to the list of proper IDs 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. 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 personally appeared before the notary public on the date indicated in the county indicated; 2) the identity of the AB 1036 Page 4 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 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 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 AB 1036 Page 5 the same reasons as state prisoners. Accordingly, this bill authorizes 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. Comments 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. 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. Prior Legislation AB 625 (Quirk, Chapter 159, Statutes of 2013) - See Background. AB 109 (Committee on Budget, Chapter 15, Statutes of 2011) AB 1036 Page 6 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. 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 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 ID 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 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) required, 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 required 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) required a AB 1036 Page 7 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) revised, among other things, 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified6/11/15) 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: (Verified6/11/15) None received ASSEMBLY FLOOR: 79-0, 5/11/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, AB 1036 Page 8 Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood NO VOTE RECORDED: Atkins Prepared by:Tara Welch / JUD. / (916) 651-4113 6/12/15 10:00:16 **** END ****