BILL ANALYSIS Ó
SB 997
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Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
997 (Lara) - As Amended June 14, 2016
SENATE VOTE: NOT RELEVANT
SUBJECT: NOTARIES PUBLIC: ACCEPTED IDENTIFICATION
KEY ISSUE: SHOULD A NOTARY PUBLIC BE AUTHORIZED TO RELY ON THE
PRESENTATION OF AN IDENTIFICATION CARD ISSUED BY A FEDERALLY
RECOGNIZED TRIBAL GOVERNMENT TO ESTABLISH THE IDENTITY OF A
PERSON WHO EXECUTES A WRITTEN INSTRUMENT?
SYNOPSIS
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. Native Americans often require notarizations
relating to business with the Bureau of Indian Affairs (BIA) and
Office of the Special Trustee (OST), both sub-agencies under the
Department of the Interior. Unfortunately, existing state law
does not authorize Identification cards issued by federally
recognized tribal governments to be accepted as a valid form of
personal identification that is necessary to obtain notary
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services. This issue is particularly problematic in California,
according to the author, because our state has the highest
population of any state of residents who identify as Native
American, and the second-highest number of federally-recognized
tribes in the United States. According to the author, a growing
number of other states have specifically authorized tribal
identification cards to be used for notarial purposes. This
bill would allow a notary public to reasonably rely upon an
identification card issued by a federally recognized tribal
government to establish the identity of the person seeking a
notary's acknowledgment. It is sponsored by California Indian
Legal Services, supported by a number of Native American tribes,
business groups, and organizations, and has no opposition.
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 document as satisfactory evidence that the person is
the same individual described in and executing the instrument:
An identification card issued by a federally recognized tribal
government.
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. (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
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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
contains a photograph and description of the person named
on it, a signature by the person, and a serial or
identifying number. (Civil Code Section 1185.)
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:
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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;
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.
(Civil Code Section 1185.)
6)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.)
7)Requires a person applying for reappointment as a notary
public to complete a three-hour refresher course of study.
(Government Code Section 8201.)
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
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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. 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.)
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 - far more commonly-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 issued within five years. (Civil Code Section 1185.)
These documents include:
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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
United States, the identification must be current or issued
within five years, AND contain a photograph, a description of
the person named on it, the signature of that person, and 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.
(Civil Code Section 1185.)
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.
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Need for Notarization is Especially Acute on Tribal Lands and
for Tribal Members. According to the author:
Native Americans often require notarizations relating to
business with the Bureau of Indian Affairs (BIA) and Office
of the Special Trustee (OST), both sub-agencies under the
Department of the Interior. One common example is when a
Native American executes a last will and testament for
disposition of property held in trust for his or her
benefit by the federal government. Special federal laws
and regulations govern the validity of such wills. (See 25
U.S.C. section 2201 et seq. and 25 C.F.R. Part 15.) The
federal Office of Hearings and Appeals (OHA), also under
the Department of the Interior, follows these laws and
regulations when conducting the probate of a deceased
Native American's estate. . . . The OHA process for such
probates is hastened when a testator executes a
self-proving affidavit in order to confirm the identity of
the witnesses to the will, to confirm his or her own
testamentary capacity, and to verify that the testator was
not under duress or other undue influence. (25 C.F.R.
15.9.) The affidavit, which must be notarized in order to
be valid, often may speed up the probate process by
eliminating the need for the OHA to hear testimony from the
witnesses as to the above, and by reducing the ability of
disgruntled relatives or heirs to challenge the will's
validity. Other examples of situations in which a Native
American requires a notarial act include establishing
eligibility for tribally-administered welfare programs or
housing assistance. Clients of these programs are often
indigent.
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According to the sponsor, California Indian Legal Services
(CILS):
CILS has been providing legal services to low-income Native
Americans since 1967. On many occasions, we have seen
elderly or impoverished Native Americans living in rural
areas prevented from, or delayed in, executing the above or
similar documents, due to having only a tribally-issued
identification card rather than a driver's license or other
currently-accepted form of identification. For such
individuals, the burden of obtaining such identification is
not inconsiderable, given the financial and/or travel
requirements involved. A delay in executing one's will or
in obtaining housing or income assistance benefits no one,
and it is a problem easily remedied by a minor change to
the Civil Code.
The need for additional identification options for tribal
members is particularly acute in California, according to the
author, because our state has the highest population of
residents identifying as Native American, and the second-highest
number of federally-recognized tribes, of any state in the
nation. (U.S. Census Bureau, (ST-99-46) States Ranked by
American Indian and Alaska Native Population, July 1, 1999
(August 30, 2000); 81 Fed. Reg. 26826 (May 4, 2016).)
This Bill Appropriately Allows Reliance on a Federally
Recognized Tribal Government-Issued Identification. Existing
state law does not specifically authorize tribal identification
cards to be accepted as a valid form of personal identification
that is necessary to obtain notary services and such
identification cards do not fit within the existing categories
of documents that are acceptable to prove the bearer's identity.
A federally recognized tribe is considered a "sovereign
nation," but not a "foreign" one and certainly not a "state
other than California."
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In Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)), the
United States Supreme Court addressed the issue of whether the
state of Georgia could impose criminal penalties on a number of
missionaries who were residing in Cherokee territory, without
having obtained licenses from the governor of Georgia. Ruling
that the laws of Georgia could have no effect in Cherokee
territory, the Court said, "[t]he Cherokee nation...is a
distinct community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no
force, and which the citizens of Georgia have no right to enter,
but with the assent of the Cherokees themselves, or in
conformity with treaties, and with the acts of Congress[.]"
According to the author, a growing number of other states have
specifically authorized tribal identification cards to be used.
For example, Washington and Oregon allow tribal identification
cards for all notarial purposes, and Colorado, Montana,
Minnesota, Nevada, Arizona, and South Dakota allow tribal
identification cards for a number of other purposes such as
voter identification/registration, banking, age verification,
motor vehicle title registrations, and alcohol/tobacco
purchases.
This bill would allow a notary public to reasonably rely on an
identification card issued by a federally recognized tribal
government to establish the identity of the person seeking the
acknowledgment of the notary public.
Security Measures In Existing Law Would Apply to Tribal
Identification, Ensuring Authenticity. This bill would allow,
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as "satisfactory evidence" that the person making the
acknowledgment is the individual who is described in a document,
reasonable reliance upon "a identification card issued by a
federally recognized tribal government." But it would require
that such an identification card meet the following criteria,
consistent with other types of identification issued by
governments outside of California:
1) Either be current or have been issued within five years;
2) Contain a photograph;
3) Contain a description of the person named on it;
4) Be signed by the person; and
5) Bear a serial or other identifying number.
The bill sensibly applies these requirements to an
identification card issued by a federally recognized tribal
government, ensuring their security and authenticity in a
similar manner to other government-issued identification.
According to the author, "Tribal identification cards must meet
the same criteria as documents issued by foreign governments,
other states, the Armed Forces, and city, county, and state
offices and agencies."
Statement of the Author. In support of the bill, the author
writes:
There is an increasing number of elderly or impoverished
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Native Americans living in rural areas, with limited access
to accepted forms of identification. As a result, many
Native Americans use tribally-issued identification cards
rather than a driver's license or other currently-accepted
forms of identification. For such individuals, the burden
of obtaining accepted forms of identification is not an
option, given the financial and travel requirements
involved. Native Americans rely heavily on notarial
services when requesting services from the Bureau of Indian
Affairs, executing a last will and testament for property
held in trust, land ownership disputes, and to request
tribally-administered welfare programs or housing
assistance. SB 997 would allow tribal identification cards
to be accepted for notary public services. . . . This
measure increases accessibility to vital services for
Native Americans that can only afford to possess tribal
identifications cards as a form of identification to have
documents notarized. Increased access to notarial services
will give families living in poverty the opportunity to
apply for welfare and housing assistance programs.
Previous or Related Legislation: AB 2566 (Nazarian, 2016)
authorizes a notary public to reasonably rely upon 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. AB 2566 is pending on the
Senate Floor.
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.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Indian Legal Services (sponsor)
Yurok Tribe
California Indian Manpower Consortium, Inc.
Northern California Tribal Court Coalition
Mooretown Rancheria
Bear River Band of Rohnerville Rancheria
Santa Rosa band of Cahuilla Indians
Jamul Indian Village A Kumeyaay Nation
Enterprise Rancheria
Opposition
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None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334