Legislature(2003 - 2004)

03/08/2004 08:07 AM House STA

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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-                                                               
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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