BILL ANALYSIS
AB 442
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 442 (Arambula) - As Amended: March 25, 2009
SUBJECT : NOTARIES PUBLIC: MATRICULA CONSULAR
KEY ISSUE : SHOULD A NOTARY PUBLIC BE AUTHORIZED TO REASONABLY
RELY ON PRESENTATION OF A MATRICULA CONSULAR, AN IDENTIFICATION
CARD ISSUED BY THE MEXICAN GOVERNMENT, TO ESTABLISH THE IDENTITY
OF THE PERSON DESCRIBED IN AND EXECUTING A WRITTEN INSTRUMENT?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to authorize notaries public to reasonably rely
on presentation of a Matricula Consular, an identification card
issued by the Mexican government, to establish the identity of a
person attempting to have a document notarized. As amended by
the author, the notary public may only accept the Matricula
Consular if it is current or has been issued within the past
five years. Supporters contend that many individuals cannot get
documents notarized because they lack acceptable identification
under current notary law, and thus this bill is needed to help
people access vital services that require notarization on
documents.
In opposition, the National Notary Association argues that the
Matricula Consular is not a secure or reliable form of
identification and that this bill would compromise the safety
and security of California consumers and undermine the
credibility of the state's Notaries Public. They cite U.S.
government research from 2003 that identifies several concerns
with consulate procedures in issuing the Matricula Consular and
of the security features of the card itself. However,
supporters report significant steps taken by the Mexican
government since 2002 to improve the card and its consular
database procedures, which they contend now makes the Matricula
Consular as secure and reliable as other forms of identification
that current law allows to be used to establish one's identity
for notarization purposes.
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SUMMARY : Adds the Matricula Consular, an identification card
issued by the Mexican government, to the list of documents that
notaries public may accept as proof of a person's identity for
the purpose of acknowledging a written instrument.
Specifically, this bill :
1)Authorizes a notary public to take acknowledgment of a written
instrument in reasonable reliance upon the presentation of a
Matricula Consular by the person making the acknowledgment, as
satisfactory evidence that person is the same individual
described in and executing the instrument.
2)Requires that the notary public may only reasonably rely upon
presentation of a Matricula Consular if it is current or has
been issued within the past five years.
EXISTING LAW :
1)Requires a notary, when executing a jurat, to administer an
oath or affirmation to the affiant and to determine, from
satisfactory evidence as described in Section 1185 of the
Civil Code, that the affiant is the person executing the
document. In addition, the affiant must sign the document in
the presence of the notary. (Government Code Section 8202.)
2)Authorizes the proof or acknowledgment of a written instrument
regarding the transfer of title to property before specified
officers of the state, including notaries public. (Civil Code
Sections 1181 to 1183.)
3)Provides that acknowledgment of a written instrument shall not
be taken unless the officer taking it has satisfactory
evidence that the person making the acknowledgment is the
individual who is described in and who executed the
instrument. (Civil Code Section 1185(a).)
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 reasonable reliance on presentation to the notary public
of one of several specified documents. (Civil Code Section
1185(b).)
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5)Specifies the documents that, if current or issued within five
years, may be reasonably relied upon by a notary public when
presented as proof of identity for notarization purposes,
namely:
a) A driver's license or identification card issued by the
California Department of Motor Vehicles
b) A United States issued passport
c) A foreign passport
d) A driver's license issued by another state, Mexico, or
Canada
e) An identification card issued by a state other than
California
f) An identification card issued by any branch of the U.S.
military
g) An identification card issued on or after January 1,
1988, by the Department of Corrections and Rehabilitation,
if the inmate is in custody
h) An employee identification card issued by a city, county
or state agency in California.
(Civil Code Section 1185(b), subparagraphs (3) and (4).)
6)Requires that, except for (a) and (b) above, the specified
document shall contain a photograph and description of the
person named on it, shall be signed by the person, shall bear
a serial or other identifying number, and if the document is a
foreign passport, shall have been stamped by the United States
Immigration and Nationalization Service. (Civil Code Section
1185(b)(4).)
COMMENTS : This bill seeks to authorize notaries public to
reasonably rely on presentation of a Matricula Consular, an
identification card issued by the Mexican government, to
establish the identity of a person attempting to have a document
notarized. As amended by the author, the bill permits the
notary public to accept the Matricula Consular only if it is
current or has been issued within the past five years.
According to the author:
Lack of identification prevents individuals from
accessing many services, including having their
documents notarized. Powers of Attorney, general or
living wills, grant deeds, and all documents to be
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recorded require notarization. It is critical that
people can identify themselves for notarization
purposes. Documents that are notarized add
verification and authenticity that the people who
signed a document are who they say they are.
Additionally, notarized documents protect families
from litigation and fraud, and help families
preserve what is lawfully theirs.
Supporters emphasize that this bill will help solve the problem
faced by certain individuals who cannot get documents notarized
because of the lack of acceptable identification under current
law governing notaries public. For example, Gilbert Zavalas, a
notary public in Fresno, writes that, on an almost daily basis,
he has to turn away people from having their documents notarized
because their only available form of identification is the
Matricula Consular.
The California Catholic Conference also writes that allowing
notaries to accept the Matricula Consular as a form of
identification will help facilitate oaths, documents, and sworn
statements of citizens of Mexican nationality. The Central
Valley Partnership for Citizenship (CVP) concurs, stating that
it is critical to permit the Matricula Consular to be accepted
for notarization because it would help people access vital
services that require notarization on documents.
The American Federation of State, County and Municipal Employees
(AFSCME) writes in support of the bill because it would help
ease the current housing market crisis, stating:
When selling or buying properties or real estate, it
is important to know who you are selling to or
buying from. What is not necessary is blocking
someone with a government issued identification card
from the ability to buy real estate in California.
This bill would free up the real estate market in a
time when home sales are exceptionally low.
Background on the Matricula Consular: The Matricula Consular de
Alta Seguridad (MCAS, or "Matricula Consular" for short) means
"High Security Consular Registration Document" in English. The
Matricula Consular is a personal identification card issued by
the Mexican government through its consulate offices that serves
as the official record for its citizens living outside of
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Mexico. The registration of nationals through the consulate
offices is a practice recognized by the Vienna Convention on
Consular Relations, and Mexican Consulates have legally issued
these documents since 1871. According to materials published by
the Consulate of Mexico, the purpose of consular registration is
to enable consular officers to provide protection and access to
consular services, as well as to help relatives and Mexican
authorities to locate their nationals abroad.
Procedures Used by Consulates Issuing a Matricula Consular :
According to materials published by the Consulate of Mexico, an
applicant seeking a Matricula Consular at the consulate offices
undergoes an initial interview where he or she personally
submits certain documents for verification: (a) Mexican birth
certificate; (b) Official government-issued photo identification
card; (c) other documents that prove Mexican nationality; (d)
proof of address (utility bills, etc.).
A consular staff member reviews the application, calls the
applicant for a second interview, and verifies the application
again. Upon satisfaction of the staff member, a modest fee is
collected (around $27 U.S.) and the staff member enters the
applicant's information into the computerized Matricula system.
To check for duplicity in the system, the computer will display
the previously captured photograph if it determines that a
Matricula Consular has already been issued to that person.
Common Uses of the Matricula Consular: Although this bill
pertains only to use of the Matricula Consular to establish
one's identity for the purpose of having a document notarized,
supporters of the bill accurately point out that the Matricula
Consular is already recognized in California as valid
identification for some local governmental purposes. For
example, in some jurisdictions the Matricula Consular can be
used to identify oneself to law enforcement agencies, to apply
for public utilities, and to identify oneself at schools and
public libraries as a parent or user. In 2003, at least 12
counties, 25 cities, and dozens of police and sheriff's
departments in California were accepting the Matricula Consular
as a form of identification. (Senate Floor Analysis of AB 25
(N??ez), of 2003-04, dated 8/27/2003.)
Anecdotal evidence indicates increasing acceptance of the
Matricula Consular by U.S. banking institutions for the purpose
of opening new accounts. For example, Wells Fargo estimates
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that it has used the Matricula Consular to open over 70,000 new
accounts since it began accepting the card in November 2001.
("Consular ID Cards: Mexico and Beyond", Migration Policy
Institute, April 2003.) According to figures provided by the
Mexican Consulate, as of July 2004, over 175 banks in the U.S.
accepted the Matricula Consular as a form of identification.
The trend includes banks in California. On March 24, 2009, the
City of Los Angeles announced a new program to help at least
10,000 low-income households open bank accounts every year.
Banks participating in the program, including Bank of America
and Citibank, will not require new applicants to produce a
Social Security number and will accept other forms of recognized
identification, including the Matricula Consular. ("Program
Aims to Help Low-Income Angelenos Open Bank Accounts", Los
Angeles Times, March 24, 2009.)
Opposition Based on Security Concerns: The National Notary
Association, a non-profit professional association of notaries
public, is strongly opposed to this bill because of security
concerns, stating:
There simply is no need for this legislation when
the Civil Code has already provided more secure
forms of identification documents-including Mexican
driver's licenses and passports-to identify Mexican
nationals. The enactment of this legislation would
require Notaries to recognize a card of proven
unreliability, weakening the California notarial
system that protects the public? Allowing the
Matricula Consular to be added to list of acceptable
documents for establishing identification in
notarizations will compromise the safety and
security of California consumers and undermine the
credibility of the state's Notaries Public.
In response, supporter Gilbert Zavalas states that the bill is
still needed because not all Mexican citizens living in
California have a driver's license or even drive. For example,
an elderly Mexican person who does not drive but who wishes to
have his will notarized may not be able to accomplish this if he
only has a Matricula Consular. Zavalas also notes that under
Section 1185 of the Civil Code, a Mexican passport is not
sufficient for notarization purposes unless it has been stamped
by the United States Immigration and Nationalization Service.
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This stamp is important because it is evidence that the passport
holder was "inspected" by a U.S. government official upon entry
into the United States, meaning his or her identification had
presumably been established from some other American database.
The National Notary Association also writes in
opposition:
Notaries in this state must not be forced to accept
a card that the U.S. Department of Justice and the
FBI declare is not a trustworthy identifier. (Those
two agencies) have conducted research on the
Matricula Consular and concluded it is "not a
reliable form of identification, due to the
non-existence of any means of verifying the true
identity of the card holder."
The specific conclusions cited from this research appear to be
taken from the testimony of Steve McCraw, Assistant Director of
the Office of Intelligence, FBI, before a special U.S. House
Judiciary Subcommittee on June 26, 2003. (See
http://www.fbi.gov/congress/congress03/ mccraw062603.htm) Among
these conclusions are:
1) The Mexican government has no centralized
database to coordinate the issuance of consular ID
cards. This allows multiple cards to be issued
under the same name, the same address, or with the
same photograph.
2) The Mexican government has no interconnected
databases to provide inter-consular communication to
be able to verify who has or has not applied for or
received a consular ID card.
3) The Matricula Consular card is vulnerable to
forgery and 90 percent of the estimated 2 million in
circulation are simply laminated cards without
security features.
The author and supporters of the bill acknowledge that security
concerns related to the features of the identification card
itself and the procedures by which it can be obtained are indeed
important. To address some of the specific concerns raised by
FBI representative McCraw's 2003 testimony, the author has
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provided materials published by the Consulate of Mexico in July
2007 that reflect recent procedural safeguards and improved
security features of the Matricula Consular card itself. These
materials state:
1) The Mexican government has developed a national
database in which consulates can verify if there are
homonyms and if the applicant has previously
received a Matricula Consular.
2) The consulates also check the applicant's
identity against a Mexican government "stop list"
containing approximately 13,000 records of persons
who are not allowed to obtain documents issued by
the Mexican government.
3) All Matricula Consulares are issued for a period
of 5 years. As of March 2002, the MCAS incorporates
cutting-edge technology, holograms, and other
embedded designs to prevent its forgery. (Thus) by
2007 all the old matriculas will have been replaced
by the MCAS.
The materials describe, in some detail, thirteen security
features built into the Matricula Consular since 2002, including
technology used by the U.S. government in its own high security
documents like Visas and FBI badges.
In short, it appears that the Mexican government has taken
substantial steps since 2002 to improve the security features of
the Matricula Consular to prevent forgery, and to implement
database procedures that safeguard against issuance of duplicate
cards. However, there remain valid concerns about the
procedures followed by Mexican consulates, particularly with
respect to the documents that applicants may submit to verify
their identification when applying for a Matricula Consular.
These supporting documents may themselves be easily forged and
it may be difficult to independently verify the identification
of the person named upon them.
Notary Training: According to the author, AB 442 will result in
more business to notaries. Notaries public will be trained to
properly accept the Matricula Consular via the mandatory course
required under current law (Government Code Section 8201). The
examination will certify that notaries public are aware of all
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laws and regulations affecting their practice, including
regulations on the Matricula Consular.
Similar Pending Legislation: SB 461 (Correa) also adds the
Matricula Consular to the list of documents that notaries public
may accept as proof of a person's identity for the purpose of
acknowledging a written instrument. SB 416 proposes an
identical change to current law as the amended version of this
bill.
Previous Legislation on the Matricula Consular: ACR 229 (Diaz),
Res. Chapter 187, Stats. 2002, urged city, county, and state
agencies to accept the Matricula Consular as an official form of
identification.
SB 804 (Polanco), of 2001-02, sought to allow a person applying
for a California Driver's License to present a Matricula
Consular for the purpose of establishing his or her
identification. SB 804 was vetoed. AB 25 (N??ez), of 2003-04,
sought to require state agencies to accept identification cards
issued by foreign countries, including the Matricula Consular,
if the card met specified requirements. AB 25 died in
committee. Similarly AB 522 (Diaz), of 2003-04, sought to
require local officers and employees to accept the Matricula
Consular for identification purposes. AB 522 was also vetoed.
SB 60 (Cedillo), Chapter 326, Stats. 2003, authorized the
Department of Motor Vehicles to accept a birth certificate
presented together with a Matricula Consular to establish proof
of identity for a driver's license application. However, this
provision was later repealed by 2003-2004 SB 1, 3rd
Extraordinary Session. SB 1162 (Cedillo), of 2005-06, attempted
to reenact provisions similar to those that were repealed in SB
60, but was vetoed.
Finally, AB 1870 (De Le?n), of 2007-08, sought to permit
secondhand coin dealers to rely on presentation of the Matricula
Consular by coin sellers as proof of identity. AB 1870 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
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Law Offices of Gilbert Zavala
American Federation of State, County and Municipal Employees
(AFSCME)
Alianza Latinoamericana por los Derechos de los Inmigrantes
(ALDI)
California Rural Legal Assistance (CRLA) Foundation
California Catholic Conference
Central Valley Partnership for Citizenship
Immigrant Legal Resource Center
PICO California
Opposition
National Notary Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334