Legislature(2003 - 2004)
03/08/2004 08:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 439-OATHS; NOTARIES PUBLIC; STATE SEAL Number 1900 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 439, "An Act relating to the authority to take oaths, affirmations, and acknowledgments in the state; relating to notaries public; relating to fees for issuing certificates with the seal of the state affixed; and providing for an effective date." Number 1873 REPRESENTATIVE GRUENBERG moved to adopt the committee substitute (CS) [for HB 439, Version 23-GH2022\D, Bannister, 3/6/04], as a work draft. There being no objection, it was so ordered. Number 1850 ANNETTE KREITZER, Chief of Staff, Office of the Lieutenant Governor, noted that Version D is the CS that was requested to put the bill in the form of legislative drafting. She noted that there are many small changes that resulted; the first most notable change is the title change. MS. KREITZER read the description of Section 1 in the sectional analysis [see analysis included in committee packet]. She said, "When Lieutenant Governor Leman came into the lieutenant governor's office, this was a surprise to us the first time we went through the business of administering the oath to folks who are new to the legislature [and] returning members. So, that's been added." MS. KREITZER noted that Sections 2, 3, 4, and 5 are conforming sections of the Alaska Civil Procedure concerning notarial acts. She noted that this is where the sectional deviates from [Version D]. She stated that there is a new Section 4, which was added by attorneys in [Legislative Legal and Research Services] as a necessary measure to make the bill conform to legislative drafting standards. She said an explanation of that can be found in the Legislative Legal and Research Services memo dated March 6, 2004, written by Theresa Bannister [included in the committee packet]. Number 1773 CHAIR WEYHRAUCH asked when the last time "this statutory scheme was amended." MS. KREITZER answered 1961. CHAIR WEYHRAUCH asked, "So, is this sort of an omnibus amendment bill to notary statute?" MS. KREITZER answered yes. CHAIR WEYHRAUCH said he would like to get "a bigger picture." Number 1748 REPRESENTATIVE GRUENBERG noted that when he served [in the legislature] before, he "tried to amend this." He said he had introduced HB 394 in the Seventeenth Alaska State Legislature. He said that because of one senator, "we couldn't get this thing updated." He commented that this has been a long time in coming. Number 1733 MS. KREITZER stated that [the proposed legislation] is important to the 12,000 notaries in the state, as well as to the banks and insurance companies. She said [HB 439] will fix statutes. MS. KREITZER returned to outlining the sectional analysis. Regarding [Section 5 of the sectional analysis, which is Section 6 in Version D], she said the fee per notarial certificate will be increased and the outdated term "folio" will not be used. Ms. Kreitzer noted that [Section 6 of the sectional analysis, which is Section 7 in Version D] specifies there will be two categories of notaries: a notary public without limitation and a limited governmental notary public. She noted that [Section 7 of the sectional analysis, which is Section 8 in Version D] will make changes to qualifications. She reviewed the changes [see Section 7 of the sectional analysis]. Number 1617 REPRESENTATIVE BERKOWITZ asked how many [felons] with notary certificates would lose them due to that provision. MS. KREITZER answered, "We don't know; we don't track that." REPRESENTATIVE BERKOWITZ added, "But there's been no indication that there are felons out there who are doing things as notaries that are inappropriate." Number 1570 SCOTT CLARK, Notary Commission Administrator, Office of the Lieutenant Governor, proffered that he has received a few phone calls from people who indicated that there might be felons serving as notaries. He said "But since it's not against the law right now, we don't follow up on it." Number 1536 REPRESENTATIVE LYNN turned to [page 5, line 8, paragraph (4), of Version D] where the language states that a notary "shall reside legally in the United States;". He said, "I wonder if anybody on this committee would have any objection to that, considering some of the other legislation that's pending, ... how we determine who is and is not residing legally in the United States, and if we could possibly be putting anybody out of work." Number 1528 CHAIR WEYHRAUCH asked Representative Lynn to "hold that thought" for later. Number 1523 REPRESENTATIVE GRUENBERG said this would be a lifetime disqualification [for a convicted felon]. He said a person may have been fully restored to his/her civil liberties and "not to be able to even be a notary public seems pretty harsh." CHAIR WEYHRAUCH said, "Yet another example why I think we need an expungement statute." Number 1500 MS. KREITZER named several felony charges. She said, "The question is: These folks who commit these, do you want them being notaries?" She said that's the policy call of the legislature. REPRESENTATIVE GRUENBERG responded, "Those are the easy cases, let's look at the harder cases." He offered to explore [the issue] with Ms. Kreitzer. Number 1479 MS. KREITZER returned to her overview of the sectional analysis. She stated that [Section 9 of the sectional analysis, which is Section 10 in Version D] deals with antiquated language, while [Section 10 of the sectional analysis, which is Section 11 in Version D] sets out what a notary public cannot do and specifies the elements that must be present for a notary public to notarize a document. She indicated that new sections in statute [Secs. 44.50.067-.068] would give the lieutenant governor the ability to address the issues regarding complaints. She indicated there was concern that people not be taken advantage of by a notary public. Number 1411 REPRESENTATIVE BERKOWITZ stated that he is not sure why the state even has notary publics. He said, "If people sign or affirm things independently, that ought to suffice. Am I wrong in that?" Number 1396 CHAIR WEYHRAUCH revealed that he is currently involved in a case where the notary [public's] signature is the critical element of the case. He added that the case has to do with the government accepting an application and transferring rights. REPRESENTATIVE BERKOWITZ responded as follows: It just strikes me as a very paternalistic type of government, where government says your signature's no good unless it gets an official stamp of approval from somebody, who has a bear minimum of qualification, you paid a fee to. It just seems like another one of these bureaucratic hurdles that government sets up to cause consternation for those of us who have to run around and get notary signatures. CHAIR WEYHRAUCH responded that in the case in which he is involved, there would have been far less consternation and expense if there had been an original notary. He stated that it's the abhorrent cases that perhaps make it necessary to continue the system. REPRESENTATIVE BERKOWITZ suggested that the focus should be on the jurisdiction of notaries, instead of "making it uniform." In response to Chair Weyhrauch's suggestion that a person could simply go to the post office to "just get it stamped," Representative Berkowitz remarked that that would still require a person to go somewhere to get somebody else to approve his/her signature. He said he knows his signature is good. He said, "There's this presumption that somehow I'm not telling the truth." CHAIR WEYHRAUCH said, "It's not a matter of veracity of a statement, it's that you're saying who you say you are." Number 1283 REPRESENTATIVE LYNN echoed the chair's last statement and added that a person who goes to a notary would have to have some form of identification, such as a driver's license. Number 1253 REPRESENTATIVE GRUENBERG stated, "This is an Act that really cries out for a uniform Act." He asked Ms. Kreitzer if there is a uniform or model notary public Act. MS. KREITZER answered yes. She informed Representative Gruenberg that it is "much more bureaucratic than this one." REPRESENTATIVE GRUENBERG stated that California's process for getting a notary public is complicated and expensive, which he opined is not appropriate for Alaska. He said he has litigated cases involving notarizations. Some of the cases dealt with whether or not the notarization itself was a forgery. He indicated that "it" shouldn't be an impediment. He asked Ms. Kreitzer, "Does this require the keeping of a journal?" MS. KREITZER answered it does not. REPRESENTATIVE GRUENBERG noted that that issue was a big deal at the time he had introduced his bill. He asked why [a journal would not be required]. MS. KREITZER indicated that although [the Office of the Lieutenant Governor] thinks it is important to keep a journal, it doesn't have the ability to enforce that people are [keeping] a journal, because it only has one [notary commission administrator]. She explained that one of the things that [the Office of the Lieutenant Governor] is trying to accomplish with "this rewrite" is a move to more of a Web-based, educational system. She said this would be more efficient considering the limited staff. Number 1111 REPRESENTATIVE GRUENBERG shared that when he introduced his bill in the past, the keeping of the journal was something that the notary public was required to do and didn't require any additional bureaucracy or staff. REPRESENTATIVE GRUENBERG turned to page 14, [beginning on line 9], which he noted was in regard to acknowledgments. He said acknowledgments are already covered under AS 09.63. He asked, "Why do you have your own separate acknowledgment statute when we already have a perfectly good uniform acknowledgment Act?" Number 1038 MR. CLARK said Representative Gruenberg is correct in his observation. He noted that some language was amended on page 3, [lines 2-3 of Version D], regarding AS 09.63.090. He stated, "With that change, it would be fine to remove all acknowledgment sections from the bill." REPRESENTATIVE GRUENBERG stated his interest in working with [Ms. Kreitzer and Mr. Clark] on the legislation. Number 1000 REPRESENTATIVE LYNN stated the following: If you said to examine the journal part, I can see where it would be appropriate to put it in there, because I'm concerned that we don't mandate someone to have a journal so we can -- if it becomes a problem in the future, then we have something to look at. Number 0988 REPRESENTATIVE BERKOWITZ surmised that he should declare a conflict, because his wife is a notary public; although he revealed that she doesn't make any money at it and she can't notarize for him. He stated that when the right time comes, he will offer an amendment to do away with the entire notary system. Number 0963 REPRESENTATIVE GRUENBERG surmised that he too should declare a conflict, because he is a notary public. CHAIR WEYHRAUCH responded that when the time comes to vote "we can declare those." Number 0945 MR. CLARK agreed that notary journals are an important aspect of functioning as a notary public and the office has always stressed the need to keep a journal and will continue to do so. He said the notaries are personally liable for everything they do; the notary journal not only protects the public, but also is the only evidence that the notary will have that he/she has performed the act according to the letter of the law. Conversely, he stated that in his four years experience, and after viewing records from the past, he has not found that the lack of a legal requirement to keep a notary journal has caused anybody any problem. REPRESENTATIVE GRUENBERG stated that [during his involvement with the past legislation] he worked with the [National Notary Association (NNA)], and this issue was a "big deal with them." He offered an example of a child custody case where the children may have benefited from a journal having been available. He said he is quite certain that the national organization would be able to find out whether [the keeping of journals] has been helpful in other states. He observed that "it's mainly an issue of proof." He suggested that if people kept the journal for five years, for example, they would be able to prove that they notarized deeds on certain dates, and that would facilitate lawyers and courts. Number 0832 REPRESENTATIVE LYNN asked, "When we do a notary here, and then we travel all over the United States, if we did not have a notary public here, would that affect the validity of some kind of a document in one of the other 49 states ...?" REPRESENTATIVE GRUENBERG answered as follows: Let's say you're litigating a will in Nebraska, and it involves an Alaska deed. Under certain Rules of Evidence, if these are notarized, they could be what are called, "self-authenticating," and it would definitely affect litigation in other states - the validity of Alaska documents. REPRESENTATIVE BERKOWITZ said it seems to him that the government has the ability to authenticate deeds and wills independently from any notary. He noted that a driver's license or birth certificate doesn't have a notary's signature on it. He suggested moving to a system where people could "self- notarize." REPRESENTATIVE GRUENBERG said that even though he is in the same political party as Representative Berkowitz, his views may be opposite on this issue. [HB 439 was heard and held.]
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