BILL ANALYSIS                                                                                                                                                                                                    Ó



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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