[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
TO REQUIRE ANY FEDERAL OR STATE COURT TO RECOGNIZE ANY NOTARIZATION
MADE BY A NOTARY PUBLIC LICENSED BY A STATE OTHER THAN THE STATE WHERE
THE COURT IS LOCATED WHEN SUCH NOTARIZATION OCCURS IN OR AFFECTS
INTERSTATE COMMERCE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 1458
__________
MARCH 9, 2006
__________
Serial No. 109-89
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
26-412 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
BOB INGLIS, South Carolina MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
DARRELL ISSA, California ANTHONY D. WEINER, New York
CHRIS CANNON, Utah ADAM B. SCHIFF, California
MIKE PENCE, Indiana LINDA T. SANCHEZ, California
J. RANDY FORBES, Virginia
Blaine Merritt, Chief Counsel
David Whitney, Counsel
Joe Keeley, Counsel
Ryan Visco, Counsel
Shanna Winters, Minority Counsel
C O N T E N T S
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MARCH 9, 2006
OPENING STATEMENT
Page
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 1
The Honorable Howard L. Berman, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Courts, the Internet, and Intellectual Property................ 2
The Honorable Darrell Issa, a Representative in Congress from the
State of California, and Member, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 3
WITNESSES
Timothy S. Reiniger, Esq., Executive Director, National Notary
Association
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Malcolm L. Morris, Esq., Professor and Associate Dean, College of
Law, Northern Illinois University
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Dean M. Googasian, Esq., The Googasian Firm, P.C.
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Mr. Michael Frank Turner, Owner, Freedom Court Reporting, Inc.
Oral Testimony................................................. 27
Prepared Statement............................................. 28
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a
Representative in Congress from the State of California, and
Ranking Member, Subcommittee on Courts, the Internet, and
Intellectual Property.......................................... 37
TO REQUIRE ANY FEDERAL OR STATE COURT TO RECOGNIZE ANY NOTARIZATION
MADE BY A NOTARY PUBLIC LICENSED BY A STATE OTHER THAN THE STATE WHERE
THE COURT IS LOCATED WHEN SUCH NOTARIZATION OCCURS IN OR AFFECTS
INTERSTATE COMMERCE
----------
THURSDAY, MARCH 9, 2006
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:07 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Lamar
Smith (Chairman of the Subcommittee) presiding.
Mr. Smith. The Committee on Courts, the Internet, and
Intellectual Property will come to order.
I'm going to recognize Members for opening statements, and
then we'll get to our witnesses' testimony as quickly as we
can.
This morning the Subcommittee will venture into
unchartered, but hopefully not shark-infested waters. Frankly,
I cannot recall this Committee ever reviewing the Notary
profession or how its members operate.
The reason is that notaries are licensed by the individual
States, not the Federal Government. But our colleague and
friend from Alabama, Representative Aderholt, introduced a bill
that is the subject of our hearing.
His interest stems from a complaint registered by one of
his constituents, who will testify as one of our witnesses
today.
For the record, a Notary Public administers oaths and
serves as an impartial witness when documents are signed. Many
States require that certain documents, such as affidavits,
deeds, and powers of attorney, be notarized before they become
legally binding on parties.
In this respect, notaries are important participants in
many legal and commercial transactions.
Since the point of legal notarization is to deter fraud, a
notary must positively identify the signatory to a document and
ensure that he or she signs the document knowingly and
willingly.
A notary typically affixes his or her signature as well as
an official seal to the document as further testament to its
authenticity.
Most States require an individual wishing to become a
notary to submit an application, pay a fee, and take an oath of
office. Many States also require an applicant to enroll in an
educational course, pass an examination, and obtain a notary
bond.
So what does Congress have to do with notary operations?
Legal disputes, Federal as well as State, are not always
confined to the geographic and judicial domains of a single
State. Much of our country's litigation crosses State lines.
The reason we are reviewing H.R. 1458 is that lawfully
notarized documents in one State may not always be acknowledged
in another State.
The Subcommittee needs to investigate the extent to which
this is a genuine problem that requires a Federal legislative
response. We must also determine if it is appropriate to act
given 10th Amendment sensitivities and the concern for States'
Rights.
We have a good panel of witnesses today who can help the
Subcommittee better understand the underlying subject matter
and answer these questions.
That concludes my opening statement, and the gentleman from
California, Mr. Berman, is recognized for his opening
statement.
Mr. Berman. Thank you very much, Mr. Chairman. Although the
topic of notary recognition between the States isn't
necessarily the most exciting issue, it's an extremely
practical one, and so I'm looking forward to hearing the
witnesses' testimony.
Notaries are involved in many aspects of legal and
commercial transactions, from trusts in the States to real
estate.
Currently, each individual State creates its own laws to
regulate the notary profession.
H.R. 1458 has been introduced in an attempt to unify and
standardize the acceptance of out-of-State notarial acts by
State and Federal courts. There have been past attempts at
unifying the requirements for notarial acts; some made by the
National Notary Association, others made by the National
Conference of Commissioners on Uniform State Laws.
Over the course of 3 decades, legislators and notary
regulating officials have borrowed from these models in
reforming State and territorial notary laws on inconsistent
basis.
In some cases, only a few sections were adopted into
statute. In others, the model was virtually--was enacted
virtually in its entirety.
Fourteen fifty eight would require each Federal or State
court to recognize out-of-State notarial acts under the
following two conditions: First, where such notarization occurs
in or affects interstate commerce; and secondly, if a seal of
the notary public's authority is used in the notarization; or
in the case of an electronic record, the seal information is
logically associated with the electronic record so as to render
the record tamper resistant.
Does the bill raise any constitutional issues? For example,
does the bill's language violate the 10th Amendment, which
disallows the Federal Government's encroachment upon the
States' reserve powers or would the concept of full faith and
credit apply?
I look forward to hearing what specific situations the bill
is trying to address, how prevalent the problem is out of out-
of-State notarial recognition and how the witnesses will
address the States' Rights issues touched on by this bill, such
as the relevance and applicability of the 10th Amendment and
the full faith and credit clause. I yield back, Mr. Chairman.
Mr. Smith. Thank you, Mr. Berman. The gentleman from
California, Mr. Issa, is recognized, and I want to point out
that Mr. Issa, after the Chairman and the Ranking Member, has
the best attendance record of any other Member of this
Subcommittee. Mr. Issa?
Mr. Issa. Thank you, Mr. Chairman. And I will thank you for
holding this hearing today. Some people might think that this
is not the most exciting issue. And they'd be right.
However, life experience leads me to realize this is an
important issue. As somebody in business for more than 20
years, I discovered that one State asks for a seal, while
another State doesn't recognize seals. If you happen to be in a
State that doesn't have a seal and you go to another State, and
they say, where's your corporate seal, you have to go make a
corporate seal, even though your own State doesn't have them.
That sort of inconsistency in commerce in this day and age is
unbelievable. But more so, the idea that one State would not
recognize a notary public's signature while, in fact, and I'll
be brief, my own life experience shows that more than 25 years
ago, when I had to prove that I was the grandson of a landowner
in Lebanon, I simply had to get a notarized copy of the death
certificate of my father and my birth certificate, go and have
it certified by the county as notarized, and since I went to
the county that I could do those both by going to two windows.
I then went to a counsel general, who kept copies of all the
signatures of all the counties' clerks to verify that that was
within my State a proper signature, which allowed me to go to
Lebanon and have my documents recognized.
If a quarter of a century ago, a miniscule country of less
than 3 million people could have a system for recognizing the
notary public in the county of Cuyahoga in the State of Ohio,
it is unbelievable that among the 50 States we cannot have an
equally effective system without congressional action. Since
it's obvious that we can't, I look forward to this hearing and
the passage of the bill.
I yield back.
Mr. Smith. Thank you, Mr. Issa. That's a particularly
interesting personal story that I hadn't heard before, so--and
it--it does impact on the subject at hand, too.
I'd like to invite our witnesses to stand and be sworn in
and then we'll get to your testimony.
If you'll raise your right hand.
[Witnesses sworn.]
Mr. Smith. Please be seated.
Our first witness is Tim Reiniger, who is Vice President
and Executive Director of the National Notary Association. Mr.
Reiniger is an attorney who has litigated commercial disputes
for more than 10 years. He is also a fellow public official,
having served as an alderman in Manchester, New Hampshire.
Mr. Reiniger earned his bachelor's degree cum laude from
Georgetown University and his law degree from the University of
Michigan.
Our next witness is Malcolm Morris, Associate Dean and
Professor of Law at Northern Illinois University. Professor
Morris teaches Federal taxation, property and trusts, and
estates. He has written numerous law review articles and
practitioner-oriented works, including Notary Law and Practice:
Cases and Materials.
Professor Morris earned his B.S. from Cornell University, a
J.D. from the State University of New York at Buffalo, and an
L.L.M. from Northwestern University.
Our third western--excuse me--third witness is Dean
Googasian, a trial lawyer from Bloomfield Hills, Michigan.
Before entering private practice, Mr. Googasian clerked for
a member of the Michigan Supreme Court and worked for the U.S.
Department of Justice. He did his undergraduate work at the
University of Michigan and later graduated first in his class
from Wayne State University Law School.
Our final witness is Mike Turner, the owner of Freedom
Court Reporting in Birmingham, Alabama, the largest reporting
company in the State. He has 30 years of experience as a notary
and court reporter and frequently travels out of State to
conduct business.
Mr. Turner was educated at the University of Alabama at
Birmingham and Lipper's Court Reporting College in Plainview,
Texas. That gives you extra status today.
Welcome to you all. We have your entire statements and
without objection, they will be made a part of the record. And,
Mr. Reiniger, we'll begin with you.
TESTIMONY OF TIMOTHY S. REINIGER, ESQ., EXECUTIVE DIRECTOR,
NATIONAL NOTARY ASSOCIATION
Mr. Reiniger. Thank you, Mr. Chairman, and honorable
Representatives of the Committee.
I am honored to be here today on behalf of the National
Notary Association, which is the largest professional
association for notaries public in the United States, with
300,000 members. I'm also pleased to be here today with our
Vice President of Notary Affairs and the nation's leading
expert on notary matters and laws. That is Mr. Chuck Ferber,
who's sitting behind me.
This is indeed on the surface what appears to be--kind of a
dry subject that's not normally discussed, but, in fact, is
becoming a matter of central importance, particularly with
respect to evidence and admissibility of records in court.
Now, I do have written comments I will be submitting today,
and I will submit those for the record. I'm going to address
orally now just a few of the major points we see with respect
to evidence.
And, in fact, last December, the 9th Circuit Bankruptcy
Court Panel in the American Express case issued an opinion with
respect to electronic records and their admissibility--now, in
that case not specifically notarized records.
But it goes to the heart of our substitute language that we
are submitting with respect to the electronic notary seals, and
electronic documents. In the American Express case the
electronic records were not authenticated. They were not
allowed into evidence at all because of the lack of sufficient
ability to prove their authenticity, their genuineness from the
time they were created throughout the history of that record.
Notarization at its heart is a means of proving the
authenticity and genuineness of a document. As you all
mentioned, the signer intentionally adopts the contents of the
document as his or her act before the independent accountable
witness, which is the notary.
The seal is the physical evidence of the material act and
the physical evidence proof of that individual's official
character or status as a notary.
Now, how does the notarization establish or prove the
document's authenticity? In two ways: the notary verifies the
identity of the signer and also verifies the content integrity
or completeness.
The rules of Federal evidence--of Federal Rules of Evidence
and the most of the State rules of evidence also area based on
this bedrock principle of authentication via the seal. However,
these rules leave some gaps. They refer to seals on public
documents, documents which have been acknowledged. And this has
resulted in some uneven application in various States from our
experience, including you will hear today from the State of
Michigan, and that case concerning the affidavit.
This bill, for the current paper world, would help to
address that problem, to create a uniform recognition and
application of documents for the notary seal for the purpose of
admissibility. It does not speak to or require that the court
enforce the document, but a prerequisite to enforcing the
document is that it first be admissible in court, so that is
the hurdle that this bill is addressing and that is the key
reason we are supporting it.
Now, this hurdle will become even more complicated, as I
mentioned, with electronic documents, and how that authenticity
is established.
In the paper world, the notary seal is physically affixed
to the document. The States set those requirements. The States
determine the form of the seal, whether it should be affixed
with an embossment or with a stamp or the typewritten words
``notary public.''
This bill does not, in any way, interfere with the ability
or how the States will determine how the seal is affixed to the
document. It merely sets a minimum standard, however, as to how
these documents will be treated by a court for admissibility
purposes, so it addresses the legal effect of the document and
no way interferes with State rules for affixing seals or even
commissioning notaries.
A very key aspect is that, particularly for the electronic
world, to preserve that same built-in test for authenticity
that is given in the paper world by the seal, in the
electronic. Because of the ease of making changes, alterations
to the documents, it is essential that the notary seal be
securely affixed to the document in such fashion that any
changes are rendered detectable. This is absolutely essential
for admissibility in court, to be able to test the authenticity
of the document. This is a very important capability.
So, again, the reasons for our support for the substitute
bill is that one, this will preserve the ability of the
notarization system as it currently exists, to provide
integrity to commerce, both in paper and electronic forms.
Mr. Smith. Okay. Mr. Reiniger, can you conclude your
testimony, and you'll be able I suspect cover some of those
same subjects during the question and answer period.
Mr. Reiniger. Absolutely. And this bill will address the
many current problems in the admissibility of notarized
documents from State to State. Thank you.
[The prepared statement of Mr. Reiniger follows:]
Prepared Statement of Timothy S. Reiniger
The National Notary Association, a non-profit professional
organization serving the 4.5 million notaries public of the United
States, is strongly in favor of the Substitute to H.R. 1458.
This bill would require federal and state courts to admit into
evidence any notarized document originating in another state, provided
that document affects interstate commerce and the Notary's seal of
office is affixed to it.
Notaries, of course, constitute one of the nation's critical front
lines of defense against forgery and other identity crimes, protecting
the titles to our homes and other valuable property, as well as our
rights to due process under law. Notaries screen document signers for
identity, volition and basic awareness, thereby daily preventing a
multitude of fraudulent acts, including those that might be committed
to fund and support terrorist activities.
`FULL FAITH AND CREDIT' DOCTRINE IGNORED
You may not be aware that, despite the ``full faith and credit''
provision of the U.S. Constitution's Article IV, Section 1, lawfully
notarized documents are often rejected when sent across state lines.
The reasons for these rejections typically concern form and not
substance.
For example, a document notarized in State A may be rejected in
State B because the acknowledgment certificate wording used in State A
does not conform verbatim to that prescribed by statute or custom in
State B, even though it conforms in substance.
Another example: A document notarized in State A may be rejected in
State B because State A by law requires notaries to use inking seals
and State B by statute or custom requires embossers.
Yet another example: A document notarized in State A may be
rejected in State B because the latter state imposes special
authentication rules beyond lawful notarization that State A may be
unequipped to carry out.
In almost every case, the cause of these document rejections is
cosmetic and does not pertain to the propriety or substance of the
notarial act itself.
These frequent document rejections constitute a serious impediment
to interstate commerce, and they impose appreciable costs on business
and government.
MODEL AND UNIFORM LAWS DO NOT SOLVE PROBLEM
One way the National Notary Association has tried to solve the
problem of these rejections is by creating, promulgating and updating a
Model Notary Act for adoption by state legislatures, so that state
notary laws across the nation might become more uniform. Although a
number of states have enacted some or all of the provisions of the
Model Notary Act in its updated forms--most recently Massachusetts, New
Mexico and North Carolina--most states have not.
Over the years, uniform laws have been created and promulgated by
the National Conference of Commissioners on Uniform State Laws to
recognize notarial acts performed in other states and jurisdictions of
the United States. These acts are: the Uniform Acknowledgment Act of
1939; the Uniform Recognition of Acknowledgments Act of 1968; and the
Uniform Law on Notarial Acts of 1982, which was drafted to replace the
two preceding acts.
However, these uniform laws have not solved the rejection problem
for three reasons. First, not all states have adopted these uniform
laws; for example, only 11 states have adopted the Uniform Law on
Notarial Acts of 1982. Second, the oldest of these uniform laws applies
only to recognition of acknowledgment notarizations, and not to other
notarial acts such as jurats. And third, none of the uniform laws deals
with admissibility issues and rules for the evidentiary use of the
notary seal.
NOTARY SEALS DETER AND REVEAL FRAUD
The Substitute to H.R. 1458 would much more directly and
effectively address the problem of notarized documents being rejected
for form or technical reasons after crossing a state border. It would
require federal and state courts to accept documents that have been
lawfully notarized out of state, provided these documents involve
interstate commerce and bear the seal of the notary.
The seal, of course, is not only the distinguishing symbol of the
notary public office in both the paper and electronic world, but it is
also an effective fraud-deterrent device that, when adroitly used, can
deter or reveal fraudulent addition or replacement of the pages in a
paper document. In the case of electronic documents--and as provided in
the Substitute to H.B. 1458--any electronic seal must likewise render
the electronic document tamper-resistant, with the capability of making
evident any unauthorized, fraudulent attempts to alter the document.
THE FEDERAL RULES OF EVIDENCE
The notary public seal is critical when it comes to the
admissibility of evidence. Authentication by seal is a bedrock
evidentiary principle in the Federal Rules of Evidence (902 [1] and
[2]) and in the many state laws they have inspired. These rules reflect
the evidentiary principle of authentication by seal of a public officer
as a condition precedent to that document's admissibility and
entitlement to full faith and credit legal enforceability. It is
recognized that the risk of forgery is reduced by the requirement of
authentication by a public officer who possesses and affixes a seal.
(See, Advisory Committee Note to FRE 902 [2].)
Under the many state laws that mirror the Federal Rules of
Evidence, documents under the seal of a public officer are generally
considered self-authenticating. It has long been established that a
notary is a public officer. See, for example, Pierce v. Indseth, (106
US at 549; 1 SCt 418 [1883]), stating that notaries ``are officers
recognized by the commercial law of the world.'' As a public officer, a
notary affixes a seal and signature to authenticate a document without
the need for extrinsic evidence to prove the seal and signature's
genuineness or to confirm the notary's capacity.
Seal use by notaries is near universal, with 44 out of 56 U.S.
states and territorial jurisdictions by law requiring a physical
imprint of an official seal--either an embosser, an inking stamp, or
both. Eleven of the remaining 12 jurisdictions that do not impose a
formal seal requirement nonetheless have a law such as New York's
Executive Law (Section 137) requiring notaries to ``print, typewrite,
or stamp'' such information as the notary's name, county, and
commission expiration date on each document notarized--certainly a seal
requirement in all but name.
NEW ERA OF ELECTRONIC DOCUMENTS
Increasingly, there is a significant interstate dimension to the
notarial system in the United States, especially in this new era of
notarized electronic documents, when digital instruments may be
instantaneously sent coast to coast at the touch of a computer key.
In this new electronic era, Article IV, Section 1, of the U.S.
Constitution has taken on a new significance when it says: ``Full faith
and credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State.'' Under our federal
system, full faith and credit recognition by sister states and
territories is obligatory, not discretionary, provided the public act,
record, or judgment was lawful in the U.S. state or territory of
origin. The official acts of all public officials--whether judges,
county clerks, recorders of deeds, justices of the peace, or notaries--
are entitled to interstate recognition.
This principle of full faith and credit was recognized in a noted
1912 case (Nicholson v. Eureka Lumber, 160 NC 33; 75 SE 730 [NC 1912]),
when North Carolina accepted a notarization lawfully performed in Texas
by a female notary, at a time when that state did not allow women to
serve as notaries.
ONE EXAMPLE OF AN IMPEDIMENT TO COMMERCE
In the experience of the National Notary Association, many of the
4.5 million notaries of the United States are veterans of what have
been described as frustrating and time-consuming ``coast-to-coast
document ping-pong matches.'' In these interstate exchanges, a document
notarized, let's say, in California may be sent for filing in Alabama,
but an attorney or clerk in Alabama will then tear off the California
notarial form, attach a blank Alabama form, and send it back to
California with the note, ``Use this certificate.'' The notary,
however, receiving the document a second time, will write a note back
saying that California law obliges him or her to use only the notary
form dictated by California statute. In this fashion, such a document
may make three or four transcontinental trips, with accompanying phone
calls and a hurried search for a new notary who will be less scrupulous
about the wording of the certificates he or she notarizes.
Indeed, in the early 1990s, the volume of such disruptive
interstate standoffs caused the California Legislature to enact a law
(Civil Code 1189[c]) stating that California notaries may use out-of-
state acknowledgment forms on documents to be filed out of state, but
must use only California's statutory acknowledgment on documents filed
in California.
The Substitute to H.R. 1458 will lessen the need for such state
laws, which should be seen as discomfiting evidence that the ``full
faith and credit'' provision of our Constitution could use some help
when it comes to interstate recognition of notarial acts.
ADDITIONAL PROPOSED AMENDMENTS
To perfect this legislation, the National Notary Association does
recommend several technical amendments. First, we recommend that the
bill specify that only ``lawful'' notarizations be recognized by the
federal or state courts. Second we recommend that the bill reflect the
fact that while some states may ``license'' their notaries, as is the
current term used in the bill, others may instead ``commission'' or
``appoint'' them.
(Accordingly, the following changes, underlined, to the Substitute
to H.R. 1458 would result:
Each Federal court shall recognize any lawful notarization made
by a notary public commissioned, appointed, or licensed under
the laws of a State other than the State where the Federal
court is located. . . .
Each court that operates under the jurisdiction of a State
shall appoint any lawful notarization made by a notary public
commissioned, appointed, or licensed under the laws of a State
other than the State where the court is located. . . .)
CONCLUSION
In conclusion, I urge your support of the Substitute to H.R. 1458
as a major step in removing the serious impediment to interstate
commerce caused by the frequent rejection of properly notarized
documents for form or technical reasons--rejection that imposes
appreciable delays and costs on business and government.
Mr. Smith. Okay. Thank you, Mr. Reiniger. Mr. Morris?
TESTIMONY OF MALCOLM L. MORRIS, ESQ., PROFESSOR AND ASSOCIATE
DEAN, COLLEGE OF LAW, NORTHERN ILLINOIS UNIVERSITY
Mr. Morris. Thank you, Mr. Chairman and distinguished
Committee Members, for allowing me to be here today to lend my
support to H.R. 1458 and explain why it will prove valuable in
promoting interstate commerce.
The bill puts in place a simple principle: an official act,
properly performed in one State deserves recognition it its
sister States. I think that somewhat addresses the full faith
and credit issues, which are in my written testimony.
I am going to stay more on text, because to allow a
professor to free wheel, we'll get nothing done in 5 minutes.
So please bear with me.
My support is based upon my view that this bill will help
eliminate unnecessary impediments in handling the everyday
transactions of individuals and businesses. Many documents
executed and notarized in one State, either by design or
happenstance, find their way into neighboring or more distant
States.
If ultimately needed in any one of the latter jurisdictions
to support or defend the claim in court that document should
not be refused admission solely on the ground it was not
notarized in the State where the court sits. The bill seeks to
ensure this would not happen.
Significantly, H.R. 1458 includes electronic notarizations
in its recognition regime. Doing so should be applauded.
Congress enacted the Electronic Signatures and Global and
National Commerce Act, E-sign, with an understanding of the
important role electronic transactions were to play in both
worldwide and national commerce. E-sign gave many electronic
documents equal footing with their paper-based counterparts. It
also recognized that electronic documents could be notarized.
Parties using electronic documents generally do not anticipate
face-to-face meetings with other parties in the transaction.
Consequently, the need to have properly authenticated
electronic documents is acute. Notaries public are armed with
new technology to perform electronic notarizations equipped to
meet this demand.
This bill would provide that electronic notarizations
receive the same interstate recognition it seeks to accord
paper-based ones.
Since many electronic documents travel over State borders,
requiring that an electronic notarization be recognized
irrespective of the State in which it was performed will help
promote electronically based interstate commerce.
Failure to do so could undercut important goals advanced by
E-sign.
Two items in the bill that I think might be considered for
additional changes are as follows: One, in the first paragraph
of both sections 1 and 2, the word--I recommend the word
``lawful'' be added immediately before ``notarizations.'' We
can--I can explain this in more depth during the question and
answer period, but I feel by doing so, this would ensure State
sovereignty insofar as notarial activities are concerned, which
seems to be an issue that one of the gentlemen raised.
I also suggest that the first paragraph of both sections 1
and 2 have a housekeeping change in that in addition to the
word ``license,'' the words--the word ``commissioned'' is
added, since many States actually commission Notaries Publics
and do not license them.
Importantly, nothing in this bill, with the changes that I
have suggested, would attempt to regulate Notaries Public or in
any way detract from the individual States' authority to do so.
The power to commission and sanction Notaries Public remains
within the exclusive province of the State. The bill seeks only
to give cross-border recognition to notarizations executed by
those persons who have been conferred the authority to perform
them under the States of their--under the statutes of their
commissioning States.
In sum, the bill addresses, with my recommended change,
only the recognition of the notarial act and does not speak to
the underlying authority that gives rise to that act.
For the above reasons, I am pleased to add my support to
this legislative initiative. The bill recognizes society has
become more mobile. The number of people traveling from State
to State has increased.
Additionally, advances in computer systems and technology
have made it easy for many businesses to operate in more than
one State.
Consequently, more and more documents are working their way
into interstate commerce. People and businesses relying on
notarized documents deserve assurances that the documents will
be respected and the legal rights created by them properly
protected. By mandating recognition of notarial acts performed
in non-forum States, this bill takes a giant step toward that
end.
Thank you
[The prepared statement of Mr. Morris follows:]
Prepared Statement of Malcolm L. Morris
It is my pleasure to be here today to add my voice in support of
the substitute amendment to H.R. 1458 (dated 12/1/05). My understanding
is that this Bill requires Federal and State courts to recognize
notarial acts performed in the United States but outside of the courts'
jurisdictional borders. More specifically, the Bill would require a
Federal court to recognize a notarization performed in a State that was
not within the territorial limits of the district or circuit in which
that court sits. It also would require a State court to recognize a
notarization performed in another State.
My support is based upon my view that this Bill will help eliminate
unnecessary impediments in handling the everyday transactions of
individuals and businesses. Many documents executed and notarized in
one State, either by design or happenstance, find their way into
neighboring or more distant States. If ultimately needed in any one of
the latter jurisdictions to support or defend a claim in court, that
document should not be refused admission solely on the ground it was
not notarized in the State where the court sits. This Bill seeks to
ensure this would not happen.
H.R. 1458 is quite sensible given what it seeks to accomplish. A
notarization in and of itself neither validates a document nor speaks
to the truthfulness or accuracy of its contents. The notarization
serves a different function, viz, verifying that a document signer is
who he or she purports to be and has willingly signed the document.
Thus, it can be said that the notary public authenticates the document.
By executing the notarial certificate, the notary public, as a
disinterested party to the transaction, informs all other parties
relying on or using the document that it is the act of the person who
signed it. The presence of the official seal gives notice that the
notary public acted under authority conferred to him or her by the
State. Consistent with the vital significance of the notarial act, this
Bill provides courts must accept the authenticity of the document even
though the notarization was performed in a State other than where the
forum is located.
Significantly, H.R. 1458 includes electronic notarizations in its
``recognition'' regime. Doing so should be applauded. Congress enacted
the Electronic Signatures in Global and National Commerce Act (15
U.S.C. Section 7006 ) (``E-Sign'') with an understanding of the import
role electronic transactions were to play in both world-wide and
national commerce. E-Sign gave electronic documents equal footing with
their paper-based counterparts. It, also, recognized that electronic
documents could be notarized. Parties using electronic documents
generally do not anticipate face-to-face meetings with others involved
in the transaction. Consequently, the need to have properly
authenticated electronic documents is acute. Notaries public armed with
new technology to perform electronic notarizations are equipped to meet
this demand. H.R. 1458 would provide that electronic notarizations
receive the same interstate recognition it seeks to accord traditional,
paper-based ones. As a result, an electronic document requiring a
notarization could not be ignored solely on the basis it was not
notarized in the jurisdiction where it is presented. Since many
electronic documents travel over State borders, requiring that an
electronic notarization be recognized irrespective of the State in
which it was performed will help promote electronically-based
interstate commerce. Failure to do so could undercut important
commercial goals advanced by E-Sign.
It could be suggested that H.R. 1458 is unnecessary because out-of-
state notarizations should receive recognition under the United States
Constitution Article IV, Section I, often referred to as the ``Full
Faith and Credit'' Clause. The underlying rationale for this position
is that notaries public are authorized by the State to perform
``public'' acts, which, by the specific language of the Clause, are
entitled to ``full faith and credit'' and thus should be recognized
throughout the States. Although they may deserve such recognition under
the aegis of the Clause, current practice does not suggest that is
happening. This Bill steps in and ensures the recognition when
interstate commerce is involved, and obviates the need for parties to
press constitutional arguments in order to achieve the desired result.
Additionally, one could suggest the Bill is unwarranted because
local law should control matters relating to recognition of acts in the
local courts. Clearly each State could develop its own rule for
recognizing notarizations from foreign jurisdictions. The weakness of
this position lies in the lack of uniformity that can result. Whereas
this may not prove to be a problem for strictly local issues, e.g.,
whether or not to admit a will to probate to govern in-state property,
it can be quite troublesome for transactions that touch more than one
State. People and businesses who execute documents that make their way
into interstate commerce need the assurance of having them accepted
wherever commerce takes them. Allowing individual States to establish
their own notarial recognition rules cannot guarantee that result.
Consequently, the otherwise routine performance of some interstate
transactions could be impeded. This Bill will ensure that notarizations
authenticating documents affecting interstate commerce will receive
proper recognition in every court in which they are presented. This
will both facilitate interstate commerce and make sure its
participants' access to the judicial system is not hampered by the
unexpected peculiarities of local rules.
As the Committee Members no doubt are aware, statutes need proper
wording to avoid unwanted results that can be caused by unanticipated
interpretations of their language. To prevent such problems from
arising, the current form of H.R. 1458 might benefit from some slight
language changes. These are noted below.
1) In the first paragraphs of both Section 1 and Section 2, the
word ``lawful'' should be added immediately before ``notarization''.
The present language mandates recognition of ``. . . any notarization
made by a notary public licensed under the laws of a State other than
the State where the court is located . . .'' Generally, a notary public
is authorized to perform notarizations only in the jurisdiction in
which his or her commission or license is issued. One could read the
current Bill language to suggest that recognition must be accorded
notarizations executed by notaries outside of their jurisdictions even
though those acts are unlawful. For example, a notary public from State
X, authorized to perform notarizations only in State X, notarizes a
document in State Y. Even though that notarization is not ``lawful''
(it exceeds the notary public's authority), under the Bill it could
receive recognition as ``any notarization'' made in a State other than
the State where the court sits. Limiting mandatory recognition only to
``lawful'' notarizations will clarify the legislative intent and
preclude any interpretations suggesting the Bill seeks to override the
limitations imposed by State-granted notarial authority.
2) The first paragraphs of both Sections 1 and 2 reference notaries
public ``licensed'' by a State. In many jurisdictions, notaries public
are ``commissioned'' by the State. Adding the words ``or commissioned''
after the word ``licensed'' as it appears in each Section will ensure
that notarizations of notaries public in all jurisdictions will be
covered by the Bill.
Importantly, nothing in this Bill attempts to regulate notaries
public or in any way detract from the individual States' authority to
do so. The power to commission and sanction notaries public remains
within the exclusive province of the States. The Bill seeks only to
give nation-wide recognition to notarizations executed by those persons
who have been conferred the authority to perform them under the
statutes of their commissioning States. In sum, the Bill addresses only
the recognition of the notarial act, and does not speak to the
underlying authority that gives rise to the act.
For the above reasons, I am pleased to add my support to this
legislative initiative. The Bill recognizes that society has become
more mobile. The number of people traveling from State to State has
increased. Additionally, advances in computer systems and technology
has made it easy for many businesses to operate in more than one State.
Consequently, more and more documents are working their way into
interstate commerce. People and businesses relying on notarized
documents deserve assurances that the documents will be respected and
the legal rights created by them properly protected. By mandating
recognition of notarial acts performed in non-forum States, this Bill
takes a giant step toward that end.
Mr. Smith. Thank you, Mr. Morris. Mr. Googasian?
TESTIMONY OF DEAN M. GOOGASIAN, ESQ.,
GOOGASIAN FIRM, P.C.
Mr. Googasian. Thank you, Mr. Chairman, Ranking Member
Berman, and Members of the Committee.
I am pleased to appear today to provide testimony in
support of H.R. 1458, as well as the proposed amendment, which
would add electronic notarization, because the bill would
improve the efficiency of our State and Federal courts and
promote justice.
Mr. Chairman, as you mentioned during your introduction, my
law practice is devoted to civil litigation on behalf of
individuals and corporations. We deal with affidavits in our
practice every day.
Notarized affidavits are required in many cases to support
the claims and defenses that are made in court, and in other
situations are used as an efficient and inexpensive method of
providing necessary testimony to a court of law. Affidavits are
frequently used to support and oppose motions, including
motions for summary judgment, whose purpose it is to weed out
cases that--where there's no issue to be decided at trial.
H.R. 1458 would remedy the very real problem that arises
when one State refuses to recognize documents notarized in
another State. In my home State of Michigan, for example, an
appeals court ruled last year, incorrectly I believe, that
Michigan should follow a statute enacted in 1879 and refuse to
recognize affidavits notarized outside of Michigan unless those
notarizations are certified.
Certification under the Michigan statute requires that a
Government official certify that the notary was duly authorized
and that the notary's signature was genuine.
But the court also ruled that the affidavit had to be
certified by a particular Government official, the clerk of the
court in the county in which the affidavit was notarized.
Michigan, in effect, has told every other State that that
State must have a particular person certify the affidavit or
Michigan will refuse to recognize it.
In addition to the inefficiency that is required by
certification in the area of litigation, where time is
frequently of the essence, this refusal to recognize out-of-
State affidavits raises a great danger of injustice.
In 7 of the 13 States whose Representatives appear on this
Subcommittee, including California, Florida, Massachusetts, New
York, Tennessee, Utah, and Wisconsin, certification by the
clerk of the local court is simply not available. In those
States, the laws have been changed since 1879 to provide
certification by a Secretary of State or perhaps another local
official, but not specifically by the clerk of the court.
As a result, Michigan courts may refuse to recognize valid
certified affidavits from these States and others where the
local clerk of the court does not provide certification. This
creates a very real problem for businesses inside and outside
of litigation and individuals as well.
One troubling situation in our State confronts creditors.
Michigan has a streamlined statutory process for litigating
creditor disputes. Credit card companies, retail creditors,
home stores, and auto companies are required in our State every
year to file thousands of lawsuits to collect millions of
dollars owed to them by debtors.
Michigan's streamlined process requires an affidavit be
filed with the complaint stating the amount of the debt owed.
If such an affidavit is filed within 10 days of its signing,
the creditor is entitled to summary judgment if the complaint
is not disputed.
Certification in those States where it's available
frequently can take 10 days or more by the time the affidavit
is sent to the local public official and returned.
But this problem is not limited, of course, to creditors.
It applies to any corporation having offices outside a
particular State or even employees who are located outside a
particular State, and creates a very real risk that they will
either not have their affidavit recognized or be forced to go
to the cost and expense of travel, either to Michigan or to
another State where the affidavit is recognized.
In my own practice, it affects where we can look for
particular experts and on behalf of the corporations we
represent, it makes it more difficult for them to become
effectively involved in Michigan's courts.
I thank you for the opportunity to appear and testify in
support of this legislation. Thank you.
[The prepared statement of Mr. Googasian follows:]
Prepared Statement of Dean M. Googasian
Mr. Smith. Thank you, Mr. Googasian. Mr. Turner?
TESTIMONY OF MICHAEL FRANK TURNER, OWNER,
FREEDOM COURT REPORTING, INC.
Mr. Turner. Thank you for letting me come here. This is
quite an honor, and it's a long way from rural Alabama and even
Plainview, Texas to Washington, D.C., and as a matter of fact I
was asked if I was from Texas this morning in a cab on the way
over here, Mr. Chairman, so know that I talk like I'm from
Texas.
But it's an honor to be here and to be among these people
here and, you know, I'm in a different realm. I'm a court
reporter for--and I've submitted my testimony already for you
guys, and been doing this 30 years; and have been ever since
the get go of coming out of Plainview, Texas and going to work
in Alabama as court reporter been on the road taking
depositions, and that's my function in this judicial system
here in the United States, and have been administering oaths
all over the U.S. by agreement. We have to get an agreement
when we're taking a deposition.
And it's just been a constant thing over the years, and I
had one of my staff people pull the records, and it's attached
to my affidavit of what just our little firm covered in January
and February out-of-State depositions of this year, and it was
170. And there are much bigger firms than ours across the
country that are doing the same thing, and it just would make
things a lot easier on us and not have that technical question
of whether or not the deposition is going to be admitted when
the time comes.
Again, it's just an honor to be here, and that's--I hope
that y'all will see fit to pass the bill, and like I said, I
don't see it takes away from anybody in any capacity. It just
further extends the territory and scope of those of us who've
already passed the test I'll call it to become a notary in our
local States.
[The prepared statement of Mr. Turner follows:]
Prepared Statement of Michael Frank Turner
Mr. Smith. Okay.
Mr. Turner. Okay.
Mr. Smith. Thank you, Mr. Turner.
Let me address my first question to Mr. Reiniger and Mr.
Morris, and this goes to something that I mentioned in my
opening statement. We have the 10th Amendment, States' Rights.
Does this bill present any constitutional questions that we
need to be concerned with because of the 10th Amendment?
Mr. Reiniger. Thank you, Mr. Chairman. We do not believe
that there is a 10th Amendment problem with this bill. We are
fully aware--our national association deals with the 50
commissioning officials and the 50 States or generally the
Secretaries of State, and the States do regulate the notaries.
They set all the commissioning requirements. They determine, as
I mentioned earlier, the forms of the seals to use and that
does vary, whether it's an embosser or a stamp.
Every State but one does require some form of evidence of
the official status of the individual as a notary, which we
refer to as the seal or the seal information.
This bill deals with the legal effects of documents that
have been notarized, so we do not--we see it as a totally
different issue, the legal effect of the document,
admissibility versus rules of procedures for notaries.
Mr. Smith. Okay. Thank you. Mr. Morris, do you have any
constitutional concerns here?
Mr. Morris. No, unless we--you know without the word
``lawful,'' if you're just looking for at or recognizing the
lawful act of a notary in State X to be recognized in State Y,
I don't see any constitutional issues.
Mr. Smith. Okay.
Mr. Morris. If you are going to have the bill go forward as
is, I could see someone raise the argument that by allowing any
notarization performed anywhere in the country even though the
notary is performing it in a jurisdiction in which he is not
licensed, that that could be an extension of authority to give
notaries to act beyond their own jurisdictional borders.
Mr. Smith. Okay. At first glance, your suggestions of
inserting those words ``lawful'' and ``commissioned'' in those
particular places I think is a good one. We'll double check it,
but that may well help the bill.
A question I had for you, though, Mr. Morris, was we heard
Mr. Googasian mention a while ago the problems that have been
created by Michigan requiring the certification out of State,
and, Mr. Googasian, you mentioned a half a dozen States,
including California, where that certification is apparently
impractical or not existent, and so there are problems there.
But do you know of any other problems that have been created by
the current system that would be solved by this particular
piece of legislation?
Mr. Morris. Not specifically other than the inclusion of
the electronic section would make clear that electronic
documents would be given the same accord.
Mr. Smith. Okay. And you anticipated a later question as
far as the electronic notarization, so I appreciate your
comments on that.
Mr. Googasian, as I said, you mentioned the problems
created by Michigan saying that they had to be certified if
they were out of State. There was something in your testimony
that made me want to ask you about the experience perhaps of
other countries. I don't know that you mentioned the European
Union, but do we have anything to learn from the experiences of
other countries as far as the bill goes?
Mr. Googasian. With respect to other countries, I guess
what I would point to Mr. Chairman is the Hague Convention and
the requirement among the countries who are party to the Hague
Convention that the documents be recognized with a particular
certification, an apostille I believe is what is required, a
particular document from a particular Government official.
The current stance in Michigan raises a very real question
about whether even a document that would be acceptable in a
foreign country, coming, for example, from California, would be
admitted into a court in Michigan, so you have the sort of
irony that one of the sister States wouldn't recognize
something that would be admissible in any of the many----
Mr. Smith. Okay.
Mr. Googasian [continuing]. Hague Convention countries.
Mr. Smith. Thank you. As I say, you've mentioned some
specific problems with the current system that would be
addressed by this legislation, and that's why that's
particularly helpful.
Mr. Turner, I wanted to ask you a question, and that is
that assuming that we address the constitutional problems and
assuming that the problems that we are hearing about are real
and I think that they are, I'm looking for who might be opposed
to this legislation. Do you think that there would be out-of-
State notaries who would be opposed to the bill because frankly
it would--they would be in competition with others from out of
State and lose some business or is that a--do you know of
anyone who would be adversely impacted by this legislation,
particularly out-of-State notaries?
Mr. Turner. I don't. I mean I thought of that, you know,
when we were talking about this, and for sake----
Mr. Smith. I mean presumably there are a lot of out-of-
State notaries who are losing business because of the need to
either get a document notarized again within that State's
boundaries, and they would--but you haven't heard of any
problems in that regard?
Mr. Turner. No, and our experience has been, Mr. Chairman
that when we show--when we go--in our particular instance,
where we're taking depositions, for us to try to hire a local
notary to come notarize a deposition is it's generally not
worth their time for what they charge to come do that. And I--
--
Mr. Smith. Okay.
Mr. Turner [continuing]. So I don't see that as a problem.
Mr. Smith. Okay. May I--just a real quick personal
question, although my time is up. What does it take to become a
notary in Texas today? Do you know?
Mr. Turner. I do not know in Texas.
Mr. Smith. Okay. Thank you, Mr. Turner. It used to be so
easy I worried about, to tell you the truth.
Thank you. The gentleman from California, Mr. Berman, is
recognized for his questions.
Mr. Berman. Probably an obligation to support the
Republican Party.
Obligation to support the Republican Party, if you want to
given note. It is a patronage position in Texas.
Given that notaries may have to follow different rules in
different States when performing a notarial act, maybe this is
for Professor Morris, if one State requires notaries to inquire
into whether the principal shows a demeanor such that he or she
cannot appreciate the consequences of the act or if there is
evidence to suggest compulsion, should the State that requires
inquiry into these matters have to accept documents
acknowledged or witnessed by a notary in the State that does
not? In other words, one State is silent on it. The neighboring
State says you can't notarize a signature unless you've
established this person knows the consequences of what he's
signing or isn't doing it under compulsion, does the State that
makes that requirement have to accept notaries from States that
don't?
Mr. Morris. Well, I--Congressman, I don't think they have
to accept notaries. I think they're accepting the document for
what it purports to be. That would not preclude any party to
that document to go into court and challenge the efficacy of
the document itself. Wills are a perfect example.
Mr. Berman. I have evidence that this guy--there was a
third person in the room who had a gun to the guy's head and--
--
Mr. Morris. That's what will contests are all about. Due
formality has been met.
Mr. Berman. Okay.
Mr. Morris. But all this is saying is you can't throw it
out just because in State X we don't require that inquiry. It's
still available. The parties who are challenging the document
would not precluded from that action.
Mr. Berman. A notary--the fact of the seal doesn't prevent
the----
Mr. Morris. I would not----
Mr. Berman [continuing]. Challenge to the----
Mr. Morris. I think notarized documents are challenged all
the time.
Mr. Berman. You've stated in your testimony that the
purpose of this bill--well, does anybody disagree with that?
Mr. Reiniger. Representative Berman, I would just add that
we are concerned about this very question that you have about
the lawfulness of the notarization and its varying requirements
around the country, particularly in the area of electronic
documents, which is just now emerging, the whole area of
electronic notarization.
California, for example, requires an electronic image of
the seal to be placed on the document. The Commonwealth of
Pennsylvania just recently issued rules, the Secretary of the
Commonwealth, that sets up a requirement that every notary use
a digital certificate, because that State is viewing
notarization as a security procedure for the document.
Colorado has yet a different system of security, which
involves the issuance of authentication numbers from the
Secretary of State to individual notaries. I was telling Mr.
Googasian that Michigan and Texas have authorized electronic
notarization, but with no clear standards at all. It could be
any type of click button or seal. So it will raise the concern
that how will one State recognize the documents coming in from
another, like, for instance, the Commonwealth of Pennsylvania
is saying there needs to be a high level of security to the
document that's notarized. Do they need to accept documents
coming in from Michigan or elsewhere that have no security
procedures connected to the notarization?
Mr. Berman. Well, that problem exists right now.
Mr. Reiniger. Right.
Mr. Berman. Now, this bill passes, and it says that if
it's--if it's--if the notarization occurs or it affects
interstate commerce in the case of an electronic record,
Federal courts must recognize a notarization if the seal
information is securely attached to or logically associated
with the electronic record so as to render the record tamper
resistant.
Does the California law meet that requirement?
Mr. ReinigerMorris. Not completely in its current form. It
is an attempt at a level of security.
Mr. Berman. So, then, if this bill were to become law, this
bill doesn't require Federal courts to accept--it doesn't
require them to recognize that notarization from the other
State? Where the Federal court is located, it doesn't require
them to accept out-of-State notarizations, and we're in a
situation where the law is right now?
Mr. Reiniger. Well, it would address the issue of self-
authentication, so in other words, the notarial acts could be
enforced, but it would be a matter of acquiring extrinsic
evidence, perhaps a certification of the notarial act of
California, unless it meets the minimum security requirement.
So that's--it goes to the issue of self-authentication without
requiring additional evidence.
Mr. Morris. Mr.--Congressman, if I may, but if you think
your argument through and this bill passed----
Mr. Berman. One thing I can assure is I haven't.
Mr. Morris. I'm sure you have.
Mr. Berman. No. I'm not sure I haven't.
Mr. Morris. Oh. Is that would encourage States to meet the
test to put into place procedures that would be satisfactory,
consistent with this statute, and then there wouldn't be any
problems. And really E-sign was an example of that, where
Congress stepped forward and told the States, look, you have to
start thinking about interstate electronic transactions and
here's the rule. And you can opt out of the Federal rule by
adopting UETA or a similar statute because that provides what
we want. And I think that----
Mr. Berman. Yeah. It's like----
Mr. Morris [continuing]. Worked very nicely.
Mr. Berman [continuing]. Like a Federal law that says you
want any Federal money for your law school, you accept
recruiters from the military on your campus. It encourages
people--local law schools and State law schools to accept
military recruiters, which is all right with me, but it's----
Mr. Morris. I think there--I think we could draw a
difference between promoting commerce and, you know, political
issues that are raised with the military----
Mr. Berman. No. No.
Mr. Morris [continuing]. But you're right. It's the same
concept. This promotes--promoting a goal. Absolutely.
Mr. Berman. The only question here is do we want to create
that dynamics with the passage of a Federal law that gets
States to change what they would otherwise do. And----
Mr. Morris. I would say to get them to change to do
something they're not doing, which the rest of the world is.
And I think they may have maybe----
Mr. Berman. Well, I'm fine with using Federal power to do
that. The Republicans used to be concerned about that, but they
aren't anymore. So.
Mr. Morris. Well, I want to leave this room safely, so I'll
make no comment.
Mr. Berman. Thank you.
Mr. Smith. Thank you, Mr. Berman. Mr. Berman's last
question reminded me of a question I didn't ask that I'd like
to now. And it had to do with the reform, and, Mr. Reiniger,
you may be the best one to answer this. What--there was a
reform effort made to change the notary statutes in a number of
States, but only about a dozen States have adopted those
particular reforms that would answer some of the questions that
have been raised today and respond to some of the problems that
have mentioned. Why is that more States have not adopted the
model notary statutes?
Mr. Reiniger. Via the States have--they all, like I have
mentioned, 50 different approaches to the notary laws. A lot of
them are served by history, cultural influences.
The--and we have seen trends from the New England States
that from the colonial traditions, which tend to have more
barebones laws, and as you head to the West, greater
regulation. So the State of California has probably the most
outstanding set of laws and regulations to protect the public;
the strongest educational requirements on notaries, for
example. So there's a wide variety, and in every State
certainly we advocate for the Model Notary Act, which we put
together with a committee of law professors in 2002, not the
latest version, a lot of States culturally don't necessarily
see the need for education, so there is--we run into that issue
quite a bit.
Mr. Smith. Okay. Well, in that case, why impose a national
standard on them that might be uncomfortable to them culturally
to use your word?
Mr. Reiniger. Well, in this case, we like this bill,
because it's talking about a standard for the legal effects of
the material act, the admissibility of it, not at all
interfering with the State requirements for education,
regulation of the notaries themselves.
We believe that this minimum standard, which would be very
beneficial to consumers and business commerce, would also have
the effect of helping our efforts to professionalize notaries,
to raise their standards.
Mr. Smith. Are you aware of any States--notary
organizations who would oppose legislation like this?
Mr. Reiniger. We are absolutely not.
Mr. Smith. Okay.
Mr. Reiniger. We're not aware of any opposition to this
proposal.
Mr. Smith. Okay. All right. That answers my question. I
thank you all, and, Mr. Turner, thank you for you coming the
greatest distance, and we appreciate your testimony as well as
the testimony of everyone here.
I'm not sure what the next step will be, but it sounds to
me like there is near consensus of support for this
legislation, so it may well be that we will look for an
opportunity to move it along and hopefully that will prevent
some of the problems that we heard about today, specifically
those problems mentioned by Mr. Googasian and also, as you
said, Mr. Reiniger, help promote trade and commerce as a result
of passing this legislation as well.
So we appreciate Mr. Aderholt's coming to me months ago and
telling me about the problems that he had seen firsthand and
probably heard about firsthand from you, Mr. Turner. So thank
you again for being here and for your testimony, and we stand
adjourned.
[Whereupon, at 10:53 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property
Mr. Chairman,
Thank you for scheduling this hearing on H.R. 1458, which requires
recognition of out of state notarizations by Federal and State courts.
Although the topic of notary recognition between the states is not the
most exciting issue--it is an extremely practical one.
Notaries are involved in many aspects of legal and commercial
transactions from trusts and estates to real estate. Currently, each
individual state creates its own laws to regulate the notary
profession. H.R. 1458 has been introduced in an attempt to unify and
standardize the acceptance of out-of-state notarial acts by state and
federal courts. There have been past attempts at unifying the
requirements for notarial acts: some made by the National Notary
Association through the Uniform Notary Act of 1973 and its successors,
the Model Notary Acts of 1984 and 2002; and others made by the National
Conference of Commissioners on Uniform State Laws when it enacted the
Uniform Acknowledgement Act of 1939, the Uniform Recognition of
Acknowledgements Act of 1968, and then finally the Uniform Law on
Notarial Acts in 1982. Over the course of three decades, legislators
and notary-regulating officials have borrowed from these models in
reforming state and territorial notary laws on inconsistent bases. In
some cases, only a few sections were adopted into statute; in others,
the model was enacted virtually in totality.
H.R. 1458 would require each Federal or State court to recognize
out of state notarial acts under the following 2 conditions: (1) where
such notarization occurs in or affects interstate commerce; and (2) if
a seal of the notary public's authority is used in the notarization; or
in the case of an electronic record, the seal information is logically
associated with the electronic record so as to render the record
tamper-resistant.
I hope the witnesses can delve into the constitutional issues
presented by this bill. For example, does the bill's language violate
the Tenth Amendment, which disallows the federal government's
encroachment upon the States' ``reserved powers'' or would the concept
of Full Faith and Credit apply?
Additionally, given that notaries may have to follow different
rules in different states when performing a notarial act, if one state
requires notaries to inquire into whether the principal shows a
demeanor such that he or she cannot appreciate the consequences of the
act or if there is evidence to suggest compulsion, should the state
that requires inquiry into these matters have to accept a document
acknowledged or witnessed by a notary in a state that does not?
Again, I look forward to learning what specific situations the bill
is trying to address, how prevalent the problem is of out-of-state
notarial recognition, and how the witnesses will address the states'
rights issues touched on by this bill, such as the relevance and
applicability of the 10th Amendment and the Full Faith and Credit
Clause.
I yield back the balance of my time.