BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 997 (Lara)
Version: August 11, 2016
Hearing Date: August 29, 2016
Fiscal: No
Urgency: No
ME
PURSUANT TO SENATE RULE 29.10
SUBJECT
Notaries public
DESCRIPTION
This bill would allow the identity of the signer of an
acknowledgement to be established by a notary public's
reasonable reliance on an identification card issued by a
federally recognized tribal government.
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. In the certificate of acknowledgment,
the notary 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
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acknowledged executing the document.
Under current law, the identity of the signer of an
acknowledgment may be established by a notary public's
reasonable reliance on any one of a number of specified
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 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, a government employee identification 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.
A federally recognized tribe is an American Indian or Alaska
Native tribal entity that is recognized as having a
government-to-government relationship with the United States,
with the responsibilities, powers, limitations, and obligations
attached to that designation, and is eligible for funding and
services from the Bureau of Indian Affairs. (Bureau of Indian
Affairs, Frequently Asked Questions
[as of Aug. 21, 2016].) Of
note, California has the highest population of any state of
residents identifying as Native American, and the second-highest
number of federally-recognized tribes. (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).)
Under current law, the identity of the signer of an
acknowledgment cannot be established by a notary public's
reasonable reliance on an identification card issued by a
federally recognized tribal government. This bill would provide
that the officer (notary public) may reasonably rely on the
presentation of an identification card issued by a federally
recognized tribal government, provided that the identification
card is current or has been issued within five years and
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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 also contains double-jointing language to
address a chaptering-out issue with AB 2566 (Nazarian).
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).)
Existing law provides that the officer (notary public) may
reasonably rely on the presentation of any one of the following,
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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).)
Existing federal law provides that an Indian tribe may become
federally recognized by an Act of Congress, administrative
procedures under 25 C.F.R. Part 83, or a decision of a United
States court. A tribe which has been recognized in one of these
three manners may not be terminated except by an act of
Congress. (Pub. L. No. 103-454 Sec. 103(4) (Nov. 2, 1994).)
Existing federal law provides an administrative procedure by
which an American Indian group can establish itself as a
federally recognized Indian tribe. (25 C.F.R. Part 83.)
This bill would provide that the officer (notary public) may
reasonably rely on the presentation of an identification card
issued by a federally recognized tribal government, provided
that the identification card 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.
COMMENT
1. Stated need for the bill
The author writes:
SB 997 would allow tribal identification cards to be accepted
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for notary public services. 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.
[ . . . ]
In addition to the many situations in which all California
residents must obtain notarizations, 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.
[ . . . ]
[California Indian Legal Services, sponsor of this bill,] has
been providing legal services to low-income Native Americans
since 1967. On many occasions, they have seen elderly or
impoverished Native Americans living in rural areas prevented
from, or delayed in, executing . . . 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 [ . . . ] is a problem easily remedied by a minor
change to the Civil Code.
2. Accepting the identification issued by federally recognized
tribal governments respects their nationhood status and inherent
powers of self-government
A federally recognized tribe is an American Indian or Alaska
Native tribal entity that is recognized as having a
government-to-government relationship with the United States,
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with the responsibilities, powers, limitations, and obligations
attached to that designation, and is eligible for funding and
services from the Bureau of Indian Affairs (BIA). (Bureau of
Indian Affairs, Frequently Asked Questions
[as of Aug. 21, 2016].)
Federally recognized tribes are recognized as possessing certain
inherent rights of self-government (i.e., tribal sovereignty)
and are entitled to receive certain federal benefits, services,
and protections because of their special relationship with the
United States. (Id.) There are currently 567 federally
recognized American Indian and Alaska Native tribes and
villages. Tribal sovereignty ensures that any decisions about
the tribes with regard to their property and citizens are made
with their participation and consent. (Id.)
In 1994, Congress enacted Public Law 103-454, the Federally
Recognized Indian Tribe List Act (108 Stat. 4791, 4792), which
formally established that an Indian group may become federally
recognized by an Act of Congress, administrative procedures
under 25 C.F.R. Part 83, or a decision of a United States court.
The Act further articulated that a tribe which has been
recognized in one of these three manners may not be terminated
except by an act of Congress. (Pub. L. No. 103-454 Sec. 103(4)
(Nov. 2, 1994.) The mandatory criteria an Indian Group must
establish in order to administratively become a federally
recognized tribe is extensive and difficult to meet. (See 25
C.F.R. Part 83, Sec. 83.7 (a)-(g).)
Existing law allows a notary to confirm identity by relying on
the presentation of a passport issued by a foreign government, a
driver's license issued by an authorized Canadian or Mexican
public agency, or a number of other state or locally issued
employee identification cards. Given the extensive process
required in order for a tribe to become federally recognized,
and that federally recognized tribes possess nationhood status
with powers of self-government, it is consistent with existing
law that a notary would also be able to rely on an
identification card issued by these federally recognized
governments.
3. Accepting the identification issued by federally recognized
tribal governments helps tribal members, especially the elderly
and poor
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The California Indian Legal Services (CILS), sponsors of this
bill, note that they have seen elderly or impoverished Native
Americans living in rural areas prevented from, or delayed in,
executing documents that require a notary's acknowledgement
because they only possess tribal identification cards rather
than driver's licenses or other currently accepted forms of
identification. CILS highlights that other states, such as
Washington and Oregon, already allow tribal identifications
cards for all notarial purposes and urges California to follow
their lead.
CILS notes that Native Americans often require notarizations
relating to business with the Bureau of Indian Affairs and
Office of Special Trustee. According to CILS:
Aside from the many situations in which all California
residents must obtain notarizations, Native Americans
often require notarizations relating to business with the
Bureau of Indian Affairs and Office of the Special
Trustee, 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. (25 U.S.C. § 2201 et
seq.; 25 C.F.R. Part 15.) The federal Office of Hearing
and Appeals (OHA), also under Interior, follows these laws
and regulations when conducting the probate of a deceased
Native American's estate. For many years there has been a
sizeable backlog of such probates, leading to uncertainty
as to land ownership, disputes between co-owners, and
frequently resulting in the unavailability of the land for
productive use until a probate is complete.
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 can
speed up the probate process by eliminating the need for
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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.
Accordingly, this bill would be particularly helpful to poor and
elderly members of federally recognized tribal governments who
may need to have documents notarized but only possess an
identification issued by a federally recognized tribal
government.
Support : Bear River Band of Rohnerville Rancheria; California
Indian Manpower Consortium, Inc.; Enterprise Rancheria Estom
Yumeka Maidu; Jamul Indian Village A Kumeyaay Nation; Mooretown
Rancheria; Northern California Tribal Court Coalition; Santa
Rosa Band of Cahuilla Indians; Yurok Tribe
Opposition : None Known
HISTORY
Source : California Indian Legal Services
Related Pending Legislation :
AB 2566 (Nazarian) 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.
This bill is currently in the Assembly awaiting concurrence in
Senate Amendments.
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
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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
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,
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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 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Rules Committee (Ayes 11, Noes 0)
Prior votes not relevant.
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