BILL ANALYSIS Ó AB 2566 Page 1 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 AB 2566 Page 2 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: AB 2566 Page 3 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 AB 2566 Page 4 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 AB 2566 Page 5 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. AB 2566 Page 6 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 AB 2566 Page 7 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 AB 2566 Page 8 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 AB 2566 Page 9 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. AB 2566 Page 10 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 AB 2566 Page 11 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 AB 2566 Page 12 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 AB 2566 Page 13 Opposition None on file Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334