New certificates just in time for nonbinary driver licenses

During the summer of 2019 the Vermont DMV will offer driver licenses with the gender listed as "other". A serendipitous change in the notary law goes into effect July 1, providing short certificates for most notarial acts. The certificates are so short that they do not contain any pronouns (he, she, they, etc.). So the notary will not have to wonder how to word a certificate for a person requesting a notarial act who does not self-identify as male or female.

This contrasts with with California, which has mandatory certificate wording for many notarial acts which include pronouns, which do not have any provision for a pronoun for a nonbinary person, and which does issue driver licenses with the gender listed as "X". Apparently serendipity does not occur in California.


New notarial certificates coming soon

The new short-form notarial certificates for Vermont go into effect Monday, July 1, 2019. They are not mandatory, but it would be a good idea to study the law if you're not going to use them (or even if you are).

The format in the law is hard to read. I made some Microsoft Word documents that I plan to use myself. I'll share them, but you must realize that I'm not a lawyer, so use them at your own risk. "Your own risk" includes not only the risk that the forms might not have the legal results you hope for, but that the Microsoft Word files might include malware; I use Microsoft Security Essentials and have not noticed any odd behavior on my computer, but you can never be 100% sure.

The certificates were modified September 14, 2019 to make it more obvious what to write on each line. Another change was separating the box for the official stamp from the area for identifying the attached document, which is not an official part of the notarial certificate.


Questions about credible witnesses

Jerry Lucas in his blog explains that when a notary identifies a person who requested a notarial act (the requester) by means of a credible witness, the notary should have the credible witness complete an affidavit attesting to the identity of the requester. The sample provided by Mr. Lucas includes statements that the requester lacks acceptable identity documents, and that the affidavit is attached to the document that the requester is having notarized.

I've looked at the Colorado Notary Handbook (March 2019), at the version suggested by the Uniform Law Commission, and Vermont's version. None of these require that the requester lack acceptable identity documents. That is an idea that comes from California. The commentary in the Uniform Law Commission version indicates the reason for the provision is to accommodate requesters who lack identity documents, but it is not an actual requirement in the law.

An instance, often discussed in internet notary forums, is a person who has an identity document in one form, for example, a driver license in a maiden name, and needs to sign a document in a different name (for example a married name, when the person just got married an hour ago). The credible witness might refuse to swear the person has acceptable identity documents; the person does have an acceptable identity document, it just isn't in the name the requester want's to use.

The other issue is attaching the credible witness affidavit to the document the requester is getting notarized. I don't believe this is correct. The notary does not attach identity evidence to the requester's document. The notary wouldn't attach a copy of the requester's driver license, nor a photo of the requester and the notary when they were together when they were both ten years old, so it would be equally inappropriate to attach the credible witness affidavit. Instead, the notary should retain the affidavit in his or her records in case the notarization is ever questioned.


Crypto for notaries

Today I saw notaries asking about encryption on two notary forums. First I saw this request from Cheryl Elliot about document encryption for documents to be sent to title companies or the like. Then I saw a more general question from Linda Kauffman about encryption for notaries.

So what are some general requirements that notaries would look for in encryption software? The first question is whether the files are to be encrypted on the notary's PC in case the PC gets stolen or if they are to be sent to other people in encrypted form. I don't have enough knowledge to write about the first question, I'll only write about encrypting files to be sent to others.

So lets look at potential recipients. Some may be home users on a tight budget. They won't buy anything just for encryption, and they won't buy software that costs hundreds of dollars (or $XX per month for a subscription). So they will have Adobe Reader, but they won't have Microsoft Office or Adobe Acrobat. They might be unwilling to download software from an unfamiliar source, or might not be competent to do so.

Other potential recipients will be using computers issued by their employers, which are good-sized corporations or government agencies. They'll probably have Microsoft Office (although possibly an old version) and Adobe Reader, but maybe not Adobe Acrobat. They won't be allowed to download and install any software.

As a group, potential recipients will use a variety of email solutions, and will not be willing to establish a new email account just because this special email account supports the encryption favored by the notary. So email encryption is a non-starter; it will be necessary to encrypt the document separately and send it as an attachment to an email.

The only common software mentioned in all of the above is Adobe Reader. Adobe Reader supports both password protection and public key cryptography (also called public key infrastructure [PKI], digital certificates, or X.509). But setting up public key cryptography is a complex business, so I'll only consider password protection. The notary can do this by subscribing to Adobe Acrobat. The password-protected files produced by Acrobat can be read by the free Adobe Reader that virtually everyone has.

The notary can save money by downloading and installing the free PrimoPDF. This supports the creation of password-protected PDFs. It is similar to various print-to-pdf functions out there, and causes some subtle changes to the images, such as dots-per-inch changes, so may not be suitable for some files.

The process of sending password-protected PDFs is essentially a one-way solution. If the recipient wants to send an encrypted reply, but doesn't have Adobe Acrobat, and isn't allowed to install PrimoPDF, the recipient won't have any way to send the encrypted reply.


Quiz for those who request notarizations

A frustration for notaries who are not attorneys (like me) is the person who decided what kind of notarization to ask for seems to have asked for the wrong notarial act. But, not being an attorney, it isn't the place of the notary to advise the requester about which notarial act would be best.

I've created a quiz which is aimed at those who request notarizations, to see if they know which notarial act would satisfy their needs. This quiz is based on the new Revised Uniform Law on Notarial Acts which will go into effect (for most purposes) on July 1, 2019.


Time to renew Vermont commission

Every Vermont notary commission expires February 10, 2019. The process to renew has changed, as explained by the Vermont Secretary of State, Office of Professional Regulation. You will want to get started now, because there are several steps.

First, download the oath form, go to a notary, and take the oath. You and the notary fill out the form. Scan it.

Next, establish an online account with the Office of Professional Regulation (if you already have an account because you already have a license, like a land surveyor, use it). Apply for a notary commission; at the right point in the process, upload the oath.

Once you have the commission, use your new commission number to order a stamp, embosser, or both. If you already have these, you might have your commission expiration date on them, and you will have to stop using them after February 10. When you order the new stamp, phone the vendor and make sure they are aware of the changes in requirements for Vermont stamps and embossers.

If you have a stamp or embosser with no expiration date on it, you can keep using it until July 1, when the new stamp rules go into effect.


Quiz on new Vermont notary law

I have created a quiz about the new Vermont notary law, Act 160 of the 2017-18 session (PDF). It is based on, but not identical to the Revised Uniform Law on Notarial Acts (RULONA). A version of RULONA that includes some commentary by the group that created it is available (PDF).

Remember I'm not an expert; you should do your own research and consult experts as necessary before relying on any information from this quiz.


Use cases for electronic notarization by Vermont notaries

When are Vermont notaries likely to perform electronic notarizations (e-notarizations)? Lets begin by distinguishing between

  • in-person e-notarizations, where the notary and the signer meet in a place with computer(s) and perform the signing and notarization on one or more computers, and
  • remote e-notarizations, where the notary and signer are in different locations and communicate via the internet, with voice and video communications, plus an ability to send the document to be signed and notarized back and forth.

Virginia already has a head start in remote e-notarization, and other states are also allowing their notaries to perform these for signers located anywhere in the world. Since Vermont notaries won't be authorized to do this until July 1, 2019, at the earliest, it will be hard for Vermont notaries to catch up. Probably the best chance would be if large services farm out the actual notarizations to notaries who work from home, a sort of cottage industry. (This post isn't addressing whether remote e-notarizations are a good idea; the general assembly has decided to authorize them so the debate is largely over.)

The cases where in-person e-notarization by Vermont notaries incude

  • notarization of documents that need to be in electronic form for individuals who don't have the identification documents or credit history needed for remote e-notarization
  • notarization where electronic documents are required but one or more stakeholders are skeptical of remote e-notarization
  • notarization of electronic files in a format not supported by the mass-market remote e-notarization providers; for this option to be available in Vermont, the Vermont notary rules will need a sufficiently flexible e-notarization approval process.

Deciphering some exemptions in the new notaries public law

Vermont's new notary public law, a version of the Revised Uniform Law on Notarial Acts, contains section (§) 5341, "EXEMPTIONS". It has three subsections, (a), (b), and (c). In my opinion these subsections are nearly independent, as I will explain.

Subsection (b)

I will begin with (b), because I think it's the easiest to understand.

This subsection exempts attorneys from the need to take an initial exam or continuing education. Also, complaints of violations against attorneys will be handled by the Professional Responsibility Board, which hears non-notarial complaints about attorneys already.

Subsection (c)

This subsection sets forth those exempt from paying the fee described in § 5324. The list of persons exempt is similar to the list in subdivision (a), but not all court personnel are exempt, only those designated by the Court Administrator. Another difference from subsection (a) is that justices of the peace, town clerks, and their assistants are exempt.

In my view the subsection (a) requirement that the persons are exempt only while acting within the scope of their official duties only applies within subsection (a), and that persons named in (c) but not (a) may perform any lawful notarial act for anyone any time. I read this chapter to mean that a person named in subsection (c) but not subsection (a) could charge a fee for the notarial act, in accordance with the regulations to be issued by the OPR, unless some other law forbids charging a fee.

Subsection (a)

Subsection (a) generally exempts people set forth in subdivision (2) of the subsection from "all the requirements of this chapter" (that is, CHAPTER 103. NOTARIES PUBLIC) except the requirement "to apply for a commission as set forth in section 5341 (a), (b)(1)-(3), (c), (d), and (e)", and to pay the fee set forth in §5324 [unless person qualifies for the fee exemption in subsection (c)]. However, this exemption only applies "when acting within the scope of their official duties".

The clause about applying for a commission is more interesting for what it excludes than what it includes; it includes what you would expect, like the need to fill out an application, be at least 18 years of age, and take an oath. But 5341 (b) (4) & (5) are excluded. The exclusion of (4) means the grounds to deny a commission that apply to other notaries do not apply to the notaries set forth in this subsection. The exclusion of (5) means the notaries set for in this subsection do not have to pass a test to get a commission.

An example of the effect of this subsection (in my opinion) would be a state trooper who took advantage of the exemption from taking an exam when applying for her first notary commission. This trooper would be allowed to perform notarial acts in the course of her official duties, but would not be able to notarize a permission trip so her neighbor's child could participate in a school field trip to Canada.

The persons set forth in subdivision (2) are generally in the courts, public defenders, prosecutors, or law enforcement officers. The scope of official duties set out in subdivision (3) covers the sorts of duties you would expect such persons to perform. The last clause in subdivision 3 is "(H) relates to a matter subject to Title 4, 12, 13, 15, 18, 20, 23, or 33 of the Vermont Statutes Annotated." This list omits some titles where many notarizations tend to occur, such as 17 (Elections), 27 (Property), and 32 (Taxation and Finance).

I believe this reinforces my view that the "acting within the scope of their official duties" phrase only applies to subsection (a), because the commonplace notarizations performed by some of the persons named in subsection (c), such as swearing in elected officials, taking acknowledgements on deeds, and administering oaths at property assessment hearings, are not within the scope of official duties described in subsection (a).

One might wonder what would happen if a person qualified for the exemptions in both subsections (a) and (c). Suppose the person took advantage of obtaining a commission without a fee, but elected to take the initial exam and continuing education. Would such a person be allowed to perform notarial acts outside the scope of his/her official duties? I think the case is unlikely to arise, because the Office of Professional Responsibility is designing an automated commissioning system. The system will probably not allow such a nuanced election. Hopefully the system will not be so rigid that a person in a position set forth in subsection (c) will be unable to apply for a regular commission with no exemptions, so that the person can perform a notarization outside the scope of official duties.


The Secretary of State's Office of Professional Regulation has issued a revised FAQ. It seems to me the new version of the FAQ generally agrees with my interpretation.


Using Excel as a notary journal?

The National Notary Association recently posted an article, "May I Use A Spreadsheet Program To Record Notary Journal Entries? in their online Notary Bulletin. The article was in the form of a question from J. G., a Pennsylvania notary, and the NNA's answer. The answer noted that Pennsylvania allows electronic journals, but the electronic journal must be tamper-evident and meet the other Pennsylvania requirements. But can an Excel journal be tamper evident?

Lets consider the tamper-evident features of a traditional paper journal. The pages are bound together, not just loose leaf or stapled. The pages are numbered by the manufacturer. The journal entries are signed by the signers the notarial acts are performed for.

Leaving aside the signer's signatures, it would be evident if blank spaces were being left between entries, or if a new entry were squeezed between existing entries. This makes it evident if a falsely dated (or entirely fabricated) entry is made by a busy notary who makes entries nearly every day. To insert a false entry that appears to have been made several days in the past, the notary would have to obtain a new journal, re-write all the entries from the beginning of the journal up to the date and time of the false entry, put in the false entry, and then copy in all the real entries after the false one. This would be a lot of work and would serve as a deterrent. In addition, the signers would not be available to resign all those entries, so the signatures would have to be forged.

In the case of an electronic journal, the notary could read all the necessary old entries electronically, put them in a new spreadsheet, insert the false entry, then continue to copy the new true entries that occurred after the false entry. If the signer merely created an image of a signature using a mouse or electronic pen, that could be copied exactly. If the signer singed the journal using an independent secure digital signature, it would be very difficult to forge it, but current enotarization systems do not provide for this, and certainly a signer seeking a notarization of a paper document will not be prepared to perform a secure digital signature. Indeed, so far, statutes for remote enotarization don't require the signer to sign the journal at all.

To counteract this, each entry could be esigned by the notary using an independent time-stamping service, and each entry could contain a pointer to the previous entry.  It would be evident that a journal had been tampered with, because the independent timestamps would continue along at the notary's usual pace, but then there would be several entries with notarization dates that are several days earlier than their associated timestamps.

However, I have never seen any system that integrates this sort of function into Excel.