BILL ANALYSIS Ó AB 2566 Page 1 ASSEMBLY THIRD READING AB 2566 (Nazarian) As Amended April 7, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, Weber, | | | | |Holden, Maienschein, | | | | |Ting | | | | | | | | | | | | ------------------------------------------------------------------ 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: AB 2566 Page 2 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: 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. 2)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. 3)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 AB 2566 Page 3 on certain non-State- or foreign-issued documents that contains a photograph and description of the person named on it, a signature by the person, and a serial or identifying number. 4)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. 5)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. 6)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 AB 2566 Page 4 proof to the department of his or her identity and California residency. 7)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. FISCAL EFFECT: None COMMENTS: 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. 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. Then, the notary can either rely on oaths made by credible witnesses, or in most circumstances, rely on some form of identification. This bill allows 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 regardless of whether the valid passport has a stamp or not, to establish the identity of the person seeking the acknowledgment of the notary public. AB 2566 Page 5 In 2013, California enacted legislation that allows undocumented immigrants to obtain drivers' licenses. Under AB 60 (Alejo), Chapter 524, Statutes of 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 the Department of Homeland Security are necessary. This bill 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. 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, or those immigrants who do not seek to obtain a driver's license. Immigrant rights advocates indicate 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 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.) There are arguments that have suggested that allowing a passport AB 2566 Page 6 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, these arguments appear 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. 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." To the extent that the notary was uncertain 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. Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0002721 AB 2566 Page 7