California Notary Law Changes In 2008

Recent changes enacted by the California Secretary of State have changed the landscape for notary publics. For the most part, these changes tighten up some of the requirements for doing the job, and update a number of requirements in light of recent changes in technology and social custom.

The first change, annotated as AB 434, puts a 15 day limit on how long a notary public can delay releasing a line item, or copy of a line item, from their records, or make a public acknowledgment that no such line item exists. In the event of a disciplinary hearing for failing to comply with this regulation, the notary public may gain clemency in delays caused by extraordinary circumstances, personal emergencies, or unavoidable personal business.

This change was enacted because there have been charges that notary publics were delaying the release of line items, at the behest of other interests. While doing so without a court order is a clear conflict of interest, there was no formal procedure in place (or formal standard) to determine if an abuse was, in fact, being done. From the perspective of a notary public, there is an issue here – it opens them up to a complaint window. This isn't an earth-shattering change, but it is an important one, closing a loophole.

The earth-shattering changes are held up in AB 886.

The exact text of the relevant section is here:• Under the new act, “personally known” as a basis for the notary taking an acknowledgment and executing a jurat is no longer allowed. No acknowledgment may be taken or jurat executed on personal knowledge alone. Violation subjects a notary to a civil penalty of up to $10,000 in an administrative action brought by the Secretary of State or a public prosecutor.

This change is by far and away the most significant one of the set, as it completely changes the standards by which notary witness process works by; in principle and point of fact, you have to have a client show you a piece of photo ID, you can't use the "personally known" standard. Speculation abounds on the reason for this change, from concerns about identity theft, to making it harder for illegal immigrants to slip through the system. However, the potential civil penalty of $10,000 is pretty important.

• The certificate of acknowledgment now is executed under penalty of perjury. A notary who willfully states as true any material fact known to be false can be subject to a civil penalty of up to $10,000.

This one should come as a surprise to no-one, after some court cases that made the rounds in 2005 and 2006. The only significant change is that it's explicitly spelled out.

• A notary public applicant must submit a photograph of their person to the Secretary of State along with the application.

This change is, likely, part of an ongoing process to build a more accountable database in the Secretary of State's office of all public commission holders, not just notary publics. It is not yet known if this will be enforced on people renewing their notary public certification, but it's likely.

• The notary public journal must contain a notation that the identity of the person making an acknowledgment, or taking an oath or affirmation is based on “satisfactory evidence” and not “personal knowledge.”

This is a simple, logical outgrowth of the first item on this list. If they're removing the personal knowledge standard of identification, they'll want annotation of the standard used for all items in your journal.

• A power of attorney document is added to the list of documents that requires a thumbprint.

This is simply closing a loophole; most notaries have been using thumbprints for this work, and have been for years.

• When requested by a peace officer investigating a criminal offense, a notary must surrender their journal immediately or as soon as possible if the journal is not present. The peace officer must have probable cause to believe that the journal contains evidence of a criminal offense. The peace officer who seizes a journal must notify the Secretary of State within 24 hours or as soon as possible of the name of the notary public whose journal was seized.

This is the ripple effect of AB 434; with standards in place for disclosure timeframes, and the simple acknowledgment that notary journals are documents kept in the public interest and may contain evidence needed in a trial, a standard for their surrender and a procedure needed to be defined.

• Willful failure to notify the Secretary of State of a change of address is punishable as an infraction by a fine of up to $500, willful failure to notify the Secretary of State of a name change is punishable as an infraction by a fine of up to $500, willful failure of a notary to provide a peace officer with a journal when requested is punishable by a civil penalty of up to $2,500, and a notary who fails to obtain a thumbprint as required by Government Code section 8206 is subject to a civil penalty up to $2,500.

Enumeration of penalties for newly defined infractions. The important ones are the last two, in particular surrendering your journal to a peace officer, and failing to get a thumbprint on a document that requires it.

• Willful failure to report the theft or loss of a journal is grounds for revocation or suspension of a notary commission. New grounds for denial of an application or revocation or suspension have been added for crimes connected to notarial acts: making a false writing, fraud relating to a deed of trust, improper notarial acts, unlawfully acting as a notary, filing false or forged documents, forgery, embezzlement, and falsely obtaining personal information. Also, willful failure to provide access to a journal when requested by a peace officer is grounds for revocation or suspension.

And this element is enumeration of penalties that can remove your commission.

Most of these changes are pretty straight forward; the one that's important is the change in the standard of identification. Make sure you're not caught out on this; all these take effect on January 1, 2008!