BILL ANALYSIS Ó
AB 2566
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Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2566
(Nazarian) - As Introduced February 19, 2016
As Proposed to be Amended
SUBJECT: NOTARIES PUBLIC: ACCEPTED IDENTIFICATION
KEY ISSUE: SHOULD A NOTARY PUBLIC BE AUTHORIZED TO RELY ON THE
PRESENTATION OF A VALID CONSULAR IDENTIFICATION DOCUMENT OR A
VALID PASSPORT TO ESTABLISH THE IDENTITY OF A PERSON WHO
EXECUTES A WRITTEN INSTRUMENT?
SYNOPSIS
In recent years, the Legislature has taken steps to ensure that
California's labor laws, civil rights laws, and worker's
compensation laws, among others, protect undocumented immigrants
in this state without regard to their immigration status. In
2013, California enacted groundbreaking legislation to allow
undocumented immigrants to obtain drivers' licenses. Under AB
60 (Alejo, Chap. 6, Stats. 2013), the Department of Motor
Vehicles (DMV) is required to issue a driver's license to an
undocumented individual if the individual provides satisfactory
proof of his or her identity and California residency. To prove
identity, AB 60 provides that the DMV shall accept a valid,
unexpired consular identification document issued by a consulate
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from the applicant's country of citizenship, or a valid,
unexpired passport from the applicant's country of citizenship.
Consistent with these goals, this bill, as proposed to be
amended, would allow a notary public to reasonably rely on a
valid consular identification document issued by a consulate
from the applicant's country of citizenship, or a valid passport
from the applicant's country of citizenship, to establish the
identity of the person seeking a notary's acknowledgment. These
forms of identification, while not exactly the same, are
comparable to identification documents that AB 60 authorized the
DMV to accept as proof of an applicant's identity. This bill is
sponsored by the Coalition for Humane Immigrant Rights of Los
Angeles, and supported by the California Immigrant Policy
Center. There is no opposition on file.
SUMMARY: Revises the list of acceptable non-state and
foreign-issued documents that notaries public may reasonably
rely upon as evidence to prove a person's identity when
acknowledging a written instrument. Specifically, this bill
authorizes a notary public to take acknowledgement of a written
instrument in reasonable reliance upon the presentation of the
following documents as satisfactory evidence that the person is
the same individual described in and executing the instrument:
1)A valid consular identification document issued by a consulate
from the applicant's country of citizenship.
2)A valid passport from the applicant's country of citizenship.
EXISTING LAW:
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1)Authorizes a notary public to take acknowledgement for advance
health care directives, powers of attorney, mortgages, deeds,
grants, transfers, and other instruments of writing executed
by any person. (Government Code Section 8205.)
2)Requires a notary, when executing a jurat to administer an
oath or affirmation to the affiant and to determine, from
satisfactory evidence, as specified, that the affiant is the
person executing the document. In addition, the affiant must
sign the document in the presence of the notary. (Government
Code Section 8202.)
3)Prohibits notary publics from acknowledging a written
instrument unless the notary 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.)
4)Defines "satisfactory evidence" to mean the absence of any
information, evidence, or other circumstances that would lead
a reasonable person to believe that the person making the
acknowledgement is not the individual he or she claims to be,
and there is any one of the following:
a) An oath or affirmation of a credible witness personally
known to the notary as provided;
b) An oath or affirmation under penalty of perjury of two
credible witnesses as provided;
c) A reasonable reliance on the presentation to the notary
on certain California-issued or United States-issued
identification documents; or
d) A reasonable reliance on the presentation to the notary
on certain non-State- or foreign-issued documents that
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contains a photograph and description of the person named
on it, a signature by the person, and a serial or
identifying number. (Ibid.)
5)Allows a notary public to reasonably rely on the presentation
of non-State and foreign-issued documents, provided that the
documents are either current or have been issued within five
years, and the documents are any of the following:
a) A passport issued by a foreign government;
b) 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;
c) An identification card issued by a state other than
California;
d) An identification card issued by any branch of the Armed
Forces of the United States; or
e) An employee identification 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.
(Ibid.)
6)Provides that in the event the document is a passport issued
by a foreign government, it shall have been stamped by the
United States Citizenship and Immigration Services of the
Department of Homeland Security. (Ibid.)
7)Provides that the Department of Motor Vehicles shall issue an
original driver's license to a person who is unable to submit
satisfactory proof that the applicant's presence in the United
States is authorized under federal law if he or she meets all
other qualifications for licensure and provides satisfactory
proof to the department of his or her identity and California
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residency. (Vehicle Code Section 12801.9.)
8)Provides that the Department of Motor Vehicles shall accept
various types of documentation for this purpose, including,
but not limited to, the following documents:
a) A valid, unexpired consular identification document
issued by a consulate from the applicant's country of
citizenship; or
b) A valid, unexpired passport from the applicant's country
of citizenship. (Ibid.)
9)Requires every person appointed as a notary public to, among
other things, complete a six-hour course of study approved by
the Secretary of State as provided, concerning the functions
and duties of a notary public. Also requires the person to
complete a written examination prescribed by the Secretary of
State to determine the fitness of the person to exercise the
functions and duties of the office of notary public.
(Government Code Section 8201.)
10)Requires a person applying for reappointment as a notary
public to complete a three-hour refresher course of study.
(Ibid.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: When an individual is looking to obtain services that
require a formal written instrument (such as an advance health
care directive, a mortgage, a deed, a property transfer, a
guardianship letter, or powers of attorney), the individual must
obtain the acknowledgment of a notary public on that written
instrument.
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Current law prohibits a notary public from acknowledging a
written instrument unless the notary has satisfactory evidence
that the person making the acknowledgement is the person he or
she claims to be. (Civil Code Section 1185.) As it stands,
there are several ways for the person to establish his or her
identity. First and foremost, there must be no evidence or
other circumstances that would lead a reasonable person to
believe that the person is not the individual he or she claims
to be. (Ibid.) Then, the notary can either rely on oaths made
by credible witnesses, or in most circumstances, rely on some
form of identification.
For sake of simplicity, the forms of identification can be
grouped into two categories: (1) identification documents issued
by the State of California or by the United States; or (2)
documents issued outside of California, including foreign
countries.
In the case of the former category, the identification must be
current or have been issued within five years. (Civil Code
Section 1185.) These documents include:
1) An identification card or driver's license issued by the
Department of Motor Vehicles;
2) A passport issued by the Department of State of the
United States;
3) An inmate identification card issued by the Department
of Corrections and Rehabilitation, if the inmate is in
custody in prison; or
4) Any form of inmate identification issued by a sheriff's
department, if the inmate is in custody in a local
detention facility. (Ibid.)
In the case of identification issued outside of the state or the
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United States, the identification must be current or have been
issued within five years, contain a photograph and description
of the person named on it, bear the signature of that person,
and include a serial or other identifying number. (Civil Code
Section 1185.) These documents include:
1) A passport issued by a foreign government;
2) 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;
3) An identification card issued by a state other than
California;
4) An identification card issued by any branch of the Armed
Forces of the United States; or
5) An employee identification 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.
(Ibid.)
If the document is a passport issued by a foreign government,
Civil Code Section 1185 requires the passport to bear a stamp
issued by the United States Citizenship and Immigration Services
of the Department of Homeland Security.
This Bill Promotes California's Goals in Supporting Immigrants
in this State Regardless of Their Immigration Status. This
bill, as proposed to be amended, would allow a notary public to
reasonably rely on a valid consular identification document
issued by a consulate of the applicant's country of citizenship,
or a valid passport from the applicant's country of citizenship,
to establish the identity of the person seeking the
acknowledgment of the notary public.
According to the Coalition for Humane Immigrant Rights of Los
Angeles (CHIRLA), the sponsors of the bill, many undocumented
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persons across the state are being denied access to essential
services because current law prevents notaries public from
relying on valid foreign consular documents, or passports
without stamps of the United States Citizenship and Immigration
Services of the Department of Homeland Security.
In support of the bill, the author writes:
The lack of acceptable identification under current laws
governing notaries public, services as a major obstacle for
these individuals to access vital services such as wills,
trusts, and medical documents that require notarization on
documents.
AB 2566 allows individuals who possess consular
identifications and unstamped valid foreign passports, as a
form of identification, to have their documents notarized.
Additionally, notarized documents protect families from
litigation and fraud, and help families preserve what is
lawfully theirs.
As Proposed to Be Amended, This Bill Allows Notaries to Accept
Certain Forms of Identification, Comparable to the Kinds of
Documents Accepted by the DMV Under AB 60. In 2013, California
enacted groundbreaking legislation that allows undocumented
immigrants to obtain drivers' licenses. Under AB 60 (Alejo,
Chap. 6, Stats. 2013), the Department of Motor Vehicles (DMV) is
required to issue a driver's license to an undocumented
individual if the individual provides satisfactory proof of his
or her identity and California residency. To prove identity, AB
60 allows the DMV to accept a valid, unexpired consular
identification document issued by a consulate from the
applicant's country of citizenship, or a valid, unexpired
passport from the applicant's country of citizenship. No stamps
from the United States Citizenship and Immigration Services of
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the Department of Homeland Security are necessary.
This bill, as proposed to be amended, tracts the similar
thinking behind AB 60 by allowing notaries to rely on a valid
consular identification document issued by a consulate from the
applicant's country of citizenship, and a valid passport from
the applicant's country of citizenship.
To a certain extent, the enactment of AB 60 has allowed a
significant group of undocumented immigrants to use their
driver's licenses as a form of identification for notarial
purposes. Under current law, a notary public may reasonably
rely on an "identification card or driver's license issued by
the Department of Motor Vehicles" to establish satisfactory
evidence. (Civil Code Section 1185.) If such identification is
sufficient to establish identity to obtain a state-issued
driver's license (which would be sufficient to prove identity to
a notary) then it should also be sufficient to prove identity to
a notary. This bill, as proposed to be amended, could help
additional immigrants obtain notary services without
compromising the state's interest in ensuring authenticity of
the consular documents.
Even Though AB 60 Allows Many Undocumented Immigrants to Use
Their Drivers' Licenses to Verify Their Identity for Notary
Purposes, This Bill Would Provide Additional Forms of Acceptable
Identification. Because the DMV does not accept expired
consular identification documents and foreign passports under AB
60, this bill could provide relief to those immigrants who have
expired documents and are therefore unable to obtain a driver's
license. Setting aside the debate of whether expired foreign
documents should be accepted by the DMV, when it comes to notary
services, the expiration date on the document does not appear to
be the most important factor in verifying identity for notary
services.
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When considering the purpose of a certificate of acknowledgment
by a notary, the approach behind this bill seems reasonable. It
is well established that "the purpose of a certificate of
acknowledgment is to establish, under oath, the identity of the
person making the acknowledgment and the genuineness of the
signature subscribed to the instrument. As otherwise stated,
the purpose of statutes requiring acknowledgment is to? give
notice to those examining the record that the execution has been
made with due care and circumspection." (1 Cal.Jur.3d (2014)
Acknowledgments, § 2, p. 749-50.)
When a notary public is reviewing an affiant's identifying
documents, the notary is assessing whether the person in front
of the notary is actually who he or she says they are. Although
the validity or authenticity of the document seems relevant, the
expiration date does not. Indeed, existing law already allows
notaries to reasonably rely on an expired California driver's
license, as long as it was issued less than five years ago.
(Civil Code Section 1185.) Similarly, this bill allows a notary
to reasonably rely on expired consular identification documents
and foreign passports, provided those documents were issued less
than five years ago.
According to the Author and Other Immigrant Rights Advocates,
the DMV Accepts Unstamped Passports As a Form of Identification
Under AB 60. As noted above, this bill, as proposed to be
amended, would allow a notary public to reasonably rely upon a
valid passport from the applicant's country of citizenship,
regardless of whether the valid passport has a stamp or not.
This Committee has learned from the author and from other
immigrant rights advocates that the DMV has interpreted "valid
passport" to include unstamped passports - that is, passports
that do not bear an I-551 stamp. (When a new immigrant first
enters into the United States through Customs and Border
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Protection, the immigrant's passport will bear an I-551 stamp.
Since an undocumented person is unlikely to have an I-551 stamp,
this requirement under current law prevents undocumented persons
from using their valid foreign passports as a form of
identification for notary purposes.)
An Unstamped Passport Not Likely to Increase the Likelihood of
Forgery. This Committee is aware of some arguments that
allowing a passport without the I-551 stamp would make it
difficult for a notary public to decipher whether the passport
is authentic or a sham. However, for a number of reasons, this
concern appears unpersuasive.
First, this concern would exist whether a passport included a
stamp, or not. In other words, if a criminal made a counterfeit
passport, couldn't that criminal also make a fake stamp?
Second, it seems reasonable to trust that a trained notary
public could reasonably detect forged identification documents.
After all, a notary public must complete certain educational and
certification requirements before becoming certified by the
Secretary of State. Indeed, a notary public must complete a
six-hour course of study and complete a written examination,
both prescribed by the Secretary of State. And when the notary
seeks reappointment, the notary must complete a three-hour
refresher course. (Government Code Section 8201.) Although
this Committee has not heard from representatives from notary
associations or organizations regarding this bill, it seems safe
to assume that identification documents would be a natural part
of a notary's study.
Finally, even if a notary public were unsure about whether a
passport was authentic or not, current law provides first and
foremost that there "must be no evidence or other circumstances
that would lead a reasonable person to believe that the person
is not the individual he or she claims to be." (Civil Code
Section 1185.) To the extent that the notary was uncertain
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about a particular document, the notary would not be required to
accept it. In the notary's exercise of ordinary care, he or she
would likely seek additional evidence until the notary was
satisfied.
Previous Legislation: AB 442 (Arambula) of 2009, sought to
authorize notaries public to reasonably rely on presentation of
a Matricular Consular, an identification card issued by the
Mexican government, to establish the identity of a person
attempting to have a document notarized. AB 442 was vetoed.
ARGUMENTS IN SUPPORT: In support of the bill, the California
Immigrant Policy Center writes:
Consular ID cards and passports from a number of foreign
countries are being accepted as valid forms of
identifications by private banks, local governments, and
the California Department of Motor Vehicles. AB 2566
(Nazarian) ensures access to vital public notary services
to undocumented immigrants using the same forms of
identification documents currently accepted by legitimate
government and private entities.
REGISTERED SUPPORT / OPPOSITION:
Support
Coalition for Humane Immigrant Rights of Los Angeles (sponsor)
California Immigrant Policy Center
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Opposition
None on file
Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334