BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2566 (Nazarian)
Version: April 7, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
ME
SUBJECT
Notaries public: acceptance of identification
DESCRIPTION
This bill would allow the identity of the signer of an
acknowledgement to be established by a notary public's
reasonable reliance on a valid consular identification document
issued by a consulate from the signer's country of citizenship
or a valid passport from the signer's country of citizenship.
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
signer; and 3) that the signer acknowledged executing the
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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 identification (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 stamped by the United States Citizenship and
Immigration Services (USCIS), 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.
Under current law, the identity of the signer of an
acknowledgment cannot be established by the notary public's
reasonable reliance on a consular identification document or a
foreign passport unless the passport has been stamped by USCIS.
Since there has not been comprehensive immigration reform in two
decades and undocumented Californians live under fear of
deportation due to reported immigration raids, undocumented
individuals frequently do not present themselves to USCIS to
have their passports stamped.
California's recent history has been one of inclusion and
respect for immigrants. In 2013, the legislature passed
historic legislation to allow undocumented immigrants to obtain
drivers' licenses. See AB 60 (Alejo, Ch. 524, Stats. 2013)
Pursuant to AB 60, the Department of Motor Vehicles (DMV) must
issue a driver's license to an undocumented Californian if he or
she provides satisfactory proof of his or her identity and
California residency, and, the DMV must 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
to prove identity.
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This bill would allow the identity of the signer of an
acknowledgement to be established by a notary public's
reasonable reliance 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, even if it has not been stamped by USCIS.
CHANGES TO EXISTING LAW
Existing law authorizes the proof or acknowledgment of written
instruments before specified officers of the state, including
notaries public. (Civ. Code Secs. 1180-1183.)
Existing law provides that the acknowledgment of an instrument
may not be taken unless the officer (notary public) taking it
has satisfactory evidence that the person making the
acknowledgment is the individual who is described in and who
executed the instrument. (Civ. Code Sec. 1185(a).)
Existing law 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). (Civ. Code Sec. 1185(b).)
Existing law provides that the officer (notary public) 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 identification 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;
an inmate identification card issued by the Department of
Corrections and Rehabilitation, if the inmate is in custody in
prison; or
any form of inmate identification issued by a sheriff's
department, if the inmate is in custody in a local detention
facility. (Civ. Code Sec. 1185(b)(3).)
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Existing law provides that the officer (notary public) 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 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. (Civ. Code Sec. 1185(b)(4).)
This bill would provide that the officer (notary public) may
reasonably rely on the presentation of 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, provided that the consular
identification document or passport 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.
This bill deletes the requirement that a passport issued by a
foreign government must be stamped by the United States
Citizenship and Immigration Services (USCIS) of the Department
of Homeland Security (DHS) in order to be reasonably relied on
by the officer (notary public).
COMMENT
1. Stated need for the bill
According to the author:
A notarized document is a document which has been
authenticated by the signature of the relevant individual
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and the signature of the notary public who acts as a
witness to the signature. Additionally, this document is
given an official notary seal. When a document has been
notarized, it has been [authenticated] by a notary public.
The inability for individuals to get their documents
notarized is an issue in our state. The lack of acceptable
identification under current laws governing notaries
public serves 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
increases accessibility to vital services for individuals
who only possess valid consular identifications and valid
foreign passports as a form of identification to have
documents notarized.
According to a Consumer Action Publication, Consular ID
cards are now being accepted as a valid form of
identification by many U.S. cities, counties, as well as
national financial institutions. People are allowed to
use their consular ID card to open an account at a bank or
credit union as well as to conduct other financial
transactions [. . .] The California Department of Motor
Vehicles also accepts valid Mexican Consular IDs for
individuals attempting to secure a California License.
Also, those applying for Deferred Action for Childhood
Arrivals (DACA) and Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA) are
authorized to use their consular IDs or foreign passport
as identity documents. However, affidavits are stronger
when notarized, which will strengthen their applications
when applying for these two programs. For example, some
applicants must rely on people to have their documents
notarized to prove their residence in this country.
According to the Migration Policy Institute, for the
millions of undocumented immigrants living in the United
States, many of these individuals not only have the legal
right to live and work in this country but many of them
cannot prove their identity. Furthermore, "their lack of
identification prevents undocumented immigrants from
accessing the few public and private services that are
available to them and intensifies their fear of contact
with public and other official institutions." AB 2566
assists undocumented immigrants in gaining access to vital
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services as well as being able to use valid consular
identification documents and valid foreign passports to
get documents notarized.
2. California's recent history of respecting immigrants
California's recent history has been one of inclusion and
respect for immigrants. California is leading the nation in
ensuring that immigrants are treated with dignity and respect.
While Congress fails to pass comprehensive immigration reform,
California has exercised its state power to protect immigrants
who are caught in limbo due to Washington's inaction. In 2013,
California enacted AB 60 (Alejo, Ch. 524, Stats. 2013) which
requires the Department of Motor Vehicles to issue a driver's
license to an undocumented Californian if the Californian
provides satisfactory proof of identity.
Just last year, the legislature passed a historic package of 10
bills to empower immigrants in California-the "Immigrants Shape
California" package. All 10 bills were signed into law by
Governor Jerry Brown, including: AB 900 (Levine, Ch. 694,
Stats. 2015) to allow youth aged 18-21 who have escaped violence
and terror in Central America to come under the protection of a
guardianship that can also help the youth obtain Special
Immigrant Juvenile Status immigration relief; SB 674 (De León,
Ch. 721, Stats. 2015) requiring law enforcement to complete
certifications for a victim of crime who was helpful to the
criminal investigation so that victims can apply for Victims of
Crime immigration visas (U-Visas); and AB 1343 (Thurmond, Ch.
705, Stats. 2015) requiring defense counsel in criminal
proceedings to provide accurate and affirmative advice and
defense to immigrants to avoid unintended immigration
consequences, such as detention, deportation, and loss of
citizenship eligibility.
This bill furthers the public policy of California by providing
undocumented Californians with the ability to use documents that
they are likely to have as undocumented immigrants in order to
verify their identity with notary publics.
3. This bill allows undocumented Californians better access to
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public and private services
Because the federal government has failed to pass comprehensive
immigration reform for two decades, many Californians who are
integral to our communities and families are undocumented.
According to the Public Policy Institute of California, in 2013
there were an estimated 2.67 million undocumented immigrants in
California.
One might argue that this bill is unnecessary because under
current law, an undocumented Californian could provide an AB 60
driver's license as identification for purposes of proving
identity to a notary public. And, under current law an
undocumented Californian could provide a foreign passport
stamped by the United States Customs and Immigration Services
(USCIS) to prove identity to a notary public. However, the bill
is necessary because although many undocumented Californians
have applied for drivers' licenses, many have not for a number
of reasons, including fear and mistrust of government due to
reported raids on immigrants by the Department of Homeland
Security. Additionally, undocumented Californians are not going
to present themselves to USCIS to receive a stamp on their
passports because they will immediately come under the threat of
deportation by the Department of Homeland Security. This bill
provides an alternative way for an undocumented immigrant to
have signatures verified by notary publics.
Under California law, undocumented Californians must also have
their signatures notarized when they engage in certain
transactions such as purchasing real property. If undocumented
Californians were not able to, because of their status, prove
their identity to a notary sufficient to have their signatures
verified, California's laws, including laws that allow
undocumented immigrants to own property, would be frustrated.
Accordingly, this bill would allow the identity of the signer of
an acknowledgement to be established by the notary public's
reasonable reliance on a valid consular identification document
issued by a consulate from the applicant's county of citizenship
or a valid passport from the applicant's country of citizenship
that has not been stamped by the USCIS.
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Support : California Dream Network; California Immigrant Policy
Center (CIPC); California Labor Federation; California Rural
Legal Assistance Foundation; Los Angeles Mayor Eric Garcetti;
Mexican American Legal Defense and Education Fund (MALDEF);
Service Employees International Union (SEIU); United Farm
workers (UFW)
Opposition : None Known
HISTORY
Source : Coalition for Humane Immigrant Rights of Los Angeles
(CHIRLA)
Related Pending Legislation : None Known
Prior Legislation :
AB 1036 (Quirk, Ch. 42, Stats. of 2015) amended Civil Code
Section 1185 to add inmate identification issued by a sheriff's
department to the list of documents presumed to prove the
identity of an individual in custody in a local detention
facility who executes a written instrument.
AB 625 (Quirk, Ch. 159, Stats. 2013) amended Civil Code Section
1185 to add inmate identification cards issued by the California
Department of Corrections and Rehabilitation (CDCR) to the list
of documents presumed to prove the identity of an incarcerated
individual who executes a written instrument.
AB 60 (Alejo, Ch. 524, Stats. 2013) requires the Department of
Motor Vehicles (DMV) to issue a driver's license to an
undocumented Californian if he or she provides satisfactory
proof of his or her identity and California residency. Requires
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 to prove identity.
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
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identification to prove the identity of an individual who
executes a written instrument. SB 461 died in the Senate
Judiciary Committee.
AB 442 (Arambula, 2009) would have amended Civil Code Section
1185 to add a Matricula Consular, issued through a consulate
office of the Mexican Government, as an allowable form of
identification to prove the identity of an individual who
executes a written instrument. This bill was vetoed by Governor
Schwarzenegger.
AB 2452 (Davis, Chapter 67, Statutes of 2008) added specified
government employee identification cards as an allowable form of
identification to prove the identity of an individual who
executes a written instrument before a notary public. This bill
also deleted a provision allowing a witness to an individual's
identification 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) requires, 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. This bill
also requires 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) requires a
notary public to use a jurat (i.e., an official declaration
similar to an affidavit) form to certify the identity of persons
signing documents.
AB 1090 (Tucker, Chapter 1044, Statutes of 1993), among other
things, revised the criteria for determining whether an
individual has presented satisfactory evidence of identity for a
notary public to take an acknowledgment of an instrument.
Prior Vote :
Assembly Floor (Ayes 72, Noes 2)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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