BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 434 A
Assemblymember Silva B
As Amended May 9, 2007
Hearing Date: June 19, 2007 4
Government Code 3
CS:rm 4
SUBJECT
Notaries Public
DESCRIPTION
This bill would require a notary public to either provide a
photostatic copy, as specified, to a requesting member of
the public, or acknowledge that the line item requested
does not exist, within 30 days of receipt of the request by
the notary.
BACKGROUND
Notaries public are appointed by the Secretary of State
only after an examination and application for appointment.
The Secretary of State's Notary Public Handbook states that
notaries public is a "?growing profession of more than
288,000 public officials who perform invaluable services to
the legal, business, financial, and real estate
communities." Because there are a growing number of
notaries public, the Legislature has increased regulation
of their conduct and qualifications in recent years. For
example, AB 1210 (Nakano, Ch. 513, Stats. 2003) imposed
mandatory education requirements for notaries public and
authorized the Secretary of State to review and approve
notary education courses as necessary. In addition, the
Secretary of State is authorized to establish disciplinary
guidelines for notaries public. (Government Code Section
8220.)
Overall, the trend towards enhanced regulation of the
notaries public profession is part of the state's attempt
(more)
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Page 2
to safeguard the public. Because the profession deals with
legally binding documents and transactions, the state has
chosen to ensure that notaries public are ethical, well
trained, and responsive to the needs of the public. AB 434
follows that trend by requiring a notary public to make a
timely response to a request from any member of the public
for a copy of the notary's entry into his or her journal.
Considering that current law lacks any specific guidelines
for a notary to respond to a request from a member of the
public, AB 434 is an attempt to provide a reasonable, but
necessary guideline for notaries to follow.
CHANGES TO EXISTING LAW
Existing law specifies the qualifications to be a notary
public. (Government Code Section 8201 et seq.)
Existing law requires a notary to maintain a sequential
journal of official acts and specifies the manner in which
he or she maintains their official seal. (Government Code
Section 8206 et seq.)
Existing law requires a notary public, upon written
request, "[T]o furnish to the Secretary of State certified
copies of the notary's journal?. To respond within 30 days
of receiving written requests sent by certified mail from
the Secretary of State's office for information relating to
official acts performed by the notary." (Government Code
Section 8205.)
Existing law also requires a notary, upon written request
of any member of the public, to supply to the requesting
party a photostatic copy of the line item representing the
requested transaction at a cost of not more than thirty
cents ($0.30) per page. (Government Code Section 8206 et
seq.)
This bill would require a notary public to either provide
that photostatic copy to a requesting member of the public,
or acknowledge that the line item requested does not exist,
within 30 days of receipt of the request by the notary.
COMMENT
1. Stated need for the bill
AB 434 (Silva)
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The author and sponsor (Conference of Delegates of
California Bar Associations) state: "At present, absent
a disciplinary proceeding, a notary public who fails to
respond, or fails to respond within a reasonable time, to
a request for information has little if any incentive to
provide the information that it is obligated to provide
to a member of the public?." The author further asserts
that: "The public, in the conduct of business may need
verification of a given signature, but the notary has no
guidelines to respond to these requests. Therefore few
regulations or disciplinary rules have been put forth by
the Secretary of State on how to respond?." AB 434, the
author and sponsor argue, provides reasonable and
necessary guidelines for a notary public to respond to a
request, helping both a notary and the public.
Finally, the author contends: "AB 434 is a simple measure
that will ? expedite the conduct of business in
California and provide for consumer protection without
unnecessary burdens on business. "
2. The current 30-day proposal may not provide for a
timely response to a
request from a member of the public
a. Current law does not provide a precise
timeline for a notary to follow when
responding to a request from a member of the public
As introduced, AB 434 required a notary to respond to a
request from a member of the public within 15 days from
the mailing of the request, which was intended to
provide a precise timeline for notaries to follow. The
initial timeline was subsequently amended to 15
business days from receipt of the request. Yet, in
response to concerns raised by the National Notary
Association (NNA) about the asserted difficulties for
notaries public to respond within 15 business days, AB
434 was further amended to the current 30-day response
time.
However, if timely and precise responses are the public
policy goals of AB 434, then it is questionable whether
affording notaries 30 calendar days to respond to a
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Page 4
request from a member of the public is good public
policy.
b. Arguments in support of an extended
30-day response guideline
In the California Escrow Association's (CEA) support if
amended position, they claimed that 15 days was too
short of a time for notaries to respond to a request,
particularly requests for very old documents.
(Assembly Business and Professions Committee analysis,
dated March 27, 2007.) Other proponents of AB 434 as
amended also claimed 15 business days was too onerous
of an obligation. They assert that: "The 30-day time
period is consistent with other parts of the Notary
Public law in the Government Code requiring a response
from a Notary." (Letter of Support from the National
Notary Association, dated May 14, 2007.) The NNA
further argues that with "?the 30-day time period,
Notaries will be more likely to provide the requested
information and thus achieve the intended result of
this legislation."
In sum, the proponents of the 30-day response period
maintain that although there should be a guideline in
place for notaries to follow, such a guideline must
recognize the everyday demands of notaries public.
Aside from the assertion that the 30-day proposal is
consistent with requests from the Secretary of State,
they contend that notaries public do not all operate on
a traditional business calendar and may be burdened by
other factors such as postal delays, intra-office
procedures, vacations, or sickness. Finally, an
extended guideline ensures that notaries are not
uniquely burdened by requests from members of the
public.
c. A request from the Secretary of State carries
different incentives and consequences than a request
from a member of the public
As mentioned in Comment 1, the author and sponsor
assert that there is very little, if any, incentive for
a notary to respond within a reasonable time to a
request from a member of the public, absent
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disciplinary proceedings. In essence, they contend
that requests from members of the public are treated
differently than requests from the Secretary of State.
Under current law, a written request from the Secretary
of State provides the only specific guideline for a
notary to respond (30 days). (Government Code Section
8205 (b)(2).)
However, the current 30-day statutory guideline does
not recognize that a request from the public for a copy
of a notary entry is ladened with different incentives
and consequences. On the one hand, a request from the
Secretary of State is likely to be in connection with
the Secretary's ministerial duties with respect to that
notary. For example, the Secretary of State is charged
with the responsibility of appointing and disciplining
notaries public. (Government Code Section 8200 et
seq.) The Secretary of State is thus afforded broad
authority to request information from a notary,
including, but not limited to certified copies of the
notary's journal. (Government Code Section 8205.) As
a result of this broad authority, a request from the
Secretary of State could be for a simple, random check
on compliance of a notary's duties rather than a
request for a critical document. Therefore, requests
from the Secretary of State emphasize a concern about
the notary's performance of their official duties, and
so the timeliness of their response is not as critical.
In contrast, failing to respond to a request from a
member of the public, absent disciplinary measures, has
different consequences. A request from the public
could be a much more time sensitive and critical
request. For instance, in the unfortunate
circumstances of identity theft or an alleged forgery,
a member of the public may need a copy of a document or
transaction in the matter of a day or a week. However,
there is no clear guideline for a response under
existing law. Additionally, AB 434's 30-day language
would attempt to treat a random request from the
Secretary of State the same as a request from a victim
of a forgery, thereby defeating the measure's intent to
provide a timely and specific guideline for a notary to
follow.
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SHOULD NOT THE COMPLIANCE PERIOD BE REDUCED TO 15
CALENDAR DAYS AFTER RECEIPT OF THE REQUEST IN LIGHT OF
THE MORE EXIGENT CIRCUMSTANCES OF A PUBLIC REQUEST?
d. Compliance with a timelier guideline would not be
too onerous
Existing law already requires a notary to maintain a
sequential journal of official acts. (Government Code
Section 8206(a)(1).) Within the journal, the notary
must include the date, time, and type of each official
act, as well as the signature of each person whose
signature that is notarized. (Government Code Section
8206(a)(2).) When a member of the public makes a
request, pursuant to existing law and under AB 434's
language, he or she must provide in writing the name
of the parties, the type of document they are
requesting, as well as the month and year the document
was notarized. Therefore, a notary would be provided
with precisely the information they are already under
a duty to keep. Moreover, the exactness of
information should make it easy for the notary to find
the entry. As a result, a notary would not be placed
under any unusual burden if they are required to
respond earlier than 30 days.
Because the primary motivation behind AB 434 seeks to
address the issue of "timeliness", it is recommended
that a notary respond within 10 to 15 business days or
15 calendar days from the receipt of a request from a
member of the public. To address concerns that a
notary may be sick or on vacation during that time,
the committee may also wish to provide an exigent
circumstance defense in any disciplinary proceeding.
Ten to fifteen business days or fifteen calendar days
should not be overly burdensome, considering the
requesting party must first provide, in writing, the
very type of information the notary is already
required to maintain. Further, a 10 to 15 business
day or 15 calendar day turnaround from the date of
receipt for a request from a member of the public
would ensure that consumers are protected, without
placing any undue burden on notaries public.
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Support: National Notary Association; Akin, Gump Strauss
Hauer & Feld LLP;
Best Realty Services; Elite Escrow Services of San
Diego; Humboldt Builders' Exchange, Inc.; Cooper,
White & Cooper LLP
Opposition: None Known
HISTORY
Source: Conference of Delegates of California Bar
Associations
Related Pending Legislation: AB 886 (Runner, in Assembly
Appropriations),
would allow, among other things, a
peace officer to seize a sequential
journal of notarial acts from a
notary public without a warrant,
requires a thumbprint for all
notarized documents and requires all
notaries public to provide a physical
address as their business address.
Prior Legislation: AB 2062 (Nakano, Ch. 539, Stats. 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 1210 (Nakano, Ch. 513, Stats. 2003),
imposes mandatory education requirements for
notaries public and authorizes the Secretary
of State to review and approve notary
education courses as necessary.
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SB 618 (Watson, Ch. 319, Stats. 1997),
specifies that the notary journal and seal
are the exclusive property of the notary
public, and requires the notary public to
keep the notary journal and the official seal
in a locked and secured area, under the
direct and exclusive control of the notary.
Prior Vote: Assembly Business and Professions Committee
(Ayes 10, Noes 0)
Assembly Floor (Ayes 72, Noes 0)
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