8
Nov

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.

Followup

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.

4
Jul

Information that must be in a notarial certificate

I have created a table showing which pieces of information must appear in a notarial certificate under the new ACT 160 passed in 2018 by the Vermont Legislature. For the most part, the law goes into effect July 1, 2019.

30
May

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.

9
May

Last-minute amendment to allow webcam notarization in Vermont

Proponents of webcam notarization are trying to sneak it in at the last minute, as an amendment to H.526, which would adopt the Revised Uniform Law on Notarial Acts. The legislature is trying to finish its business and adjourn on Friday, May 11, so everything is moving fast.

The bill may be found by going to https://legislature.vermont.gov/bill/status/2018/H.526 and looking at the line that contains "House proposal of amendment to Senate proposal of amendment". Click on "P. 4144" and in the PDF that downloads, search on "4144" to get to that page. (The Journal of the Senate page numbers start at the beginning of the term in 2016; the PDF is only 126 pages long.)

I hope even proponents of webcam notarization (which I am not),  would oppose badly written laws. This amendment is very badly written indeed.

  1. Webcam notarization is controversial and technically complex. I oppose any legislation on this subject that is introduced at the last minute without the opportunity for consideration and the hearing of testimony by appropriate committees.
  2. In-person electronic notarization is legal today under V.S.A. Title 9 Chapter 20, Uniform Electronic Transactions Act. This amendment would suddenly outlaw these notarizations until the Secretary of State creates rules for them. The amendment fails to clearly state the date the prohibition would go into effect.
  3. Although I oppose webcam notarizations, if it is to be done at all, it should be done right. This amendment fails to specify many aspects that go beyond executive branch rule making. One example: if the notary is in Vermont, but the person executing the record is in another state, is it lawful? If so, is the place of notarization considered to be Vermont or the other state?
4
Apr

Vermont Bar Association is paying attention to details

As I wrote on March 30, the Vermont Legislature is considering the Revised Uniform Law on Notarial Acts (RULONA). On a national level, this bill is recommended by the Uniform Law Commission and has been adopted, with some variations, by several other states.

The bill is currently in the Senate Government Operations Committee. Among those providing input on the bill is the Vermont Bar Association. In reviewing the versions posted at the legislature's website, particularly this page, followed by some correspondence with Chris Winters (Deputy Secretary of State), I learned that a paragraph from the Uniform Law Commission's version has been altered for Vermont. The changes from the ULC version to the current Vermont draft are shown by means of strikeouts and underlines:

“Notarial act” means an act, whether performed with respect to a tangible or electronic record, that a notarial officer notary public may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy,</del and noting a protest of a negotiable instrument.

(B) “Notarial act” does not include a corporate officer attesting to
another corporate officer’s signature in the ordinary course of the corporation’s
business.

(C) Nothing in this chapter shall be construed to require the use of a
notary public to witness a signature that is allowed by law to be witnessed by
an individual who is not a notary public.

The changes related to attesting a signature were made because the VBA is worried that if an ordinary person were to witness a signature as a private person, it might be considered an improper notarial act, which is not the intent of the bill, neither here nor in other states. I'm inclined to think this is a stretch. How many clubs have new members take an "oath", which is not administered buy a government official, upon joining? How many of the people administering these "oaths" have been prosecuted for performing an illegal notarization? What about notaries of the Catholic Church, who witness papers related to church operations, and never pretend they have any government sanction?

The Senate Government Operations committee has also deleted the power of a notary to certify a copy of a record. Getting a copy certified by a notary isn't a terribly wise course of action anyway, because the notary is seldom in a position to know if the record being copied is authentic. But the RULONA doesn't list this as an optional power, so someone who things this supposedly uniform law is actually uniform is in for a rude surprise.

 

30
Mar

Notaries Public will still be government officers?

The latest draft of Vermont's version of the Revised Uniform Law on Notarial Acts, being considered by the Vermont Legislature, may be found here (PDF). One thing that bothered me was that it didn't mention, near the beginning of the bill, whether notaries would still be considered government officers. However, throughout the bill, notaries are referred to being "commissioned", which is a term usually applied to an official. Also, § 5341(c) requires an applicant for a notary commission to "execute an oath of office" before a commission can be issued, which makes it reasonably clear the notary is a government officer.

Given that, the next question is which branch of government the notary belongs to.

18
Jan

Shelter training

I'd like to thank the volunteers from Chittenden and Mendon who turned out to take shelter training from the American Red Cross so that they can assist their neighbors during disasters. The meeting was just after a snow storm, so the travel wasn't as easy as it might have been. I' also like to thank Janet Carini who taught the class with me.

Session 2 is 7 to 9 PM, Wednesday, January  at the Barstow Elementary School, 223 Chittenden Road, Chittenden, Vermont. The class will be finished after this session.

17
Oct

Mass. places a requirement on out-of-state acknowledgements

It's often been stated in Internet notary-related forums that if an acknowledgement meets the requirements of the place where it is taken, it should be valid in all states, and, as long as it has the right ink color, paper size, and margins, should be able to be recorded anywhere. (Although there was some discussion of a state that requires "husband and wife" in the ack and some notaries aren't willing to certify that.)

I came across a requirement for acknowledgements that are to be used in MA (specifically, be recorded in MA) at:

https://rebama.blogspot.com/2017/09/still-free-act-and-deed.html
The website belongs to the Real Estate Bar Association for Massachusetts.

A similar pdf from a law firm is at:

https://www.murthalaw.com/files/avoidance_of_defectively_notarized_mortgages_2.pdf

According to them, an acknowledgement must indicate that the signer (and if the signer is a representative, the principal) acknowledged signing the instrument VOLUNTARILY. The ack should contain 'the language “voluntarily for its intended purpose” or “signed as his/her free act and deed,” or similar language to that effect'.

Some states, like CA, do not contain any language indicating the signer or principal acted voluntarily. This would seem to be the rare case where the CA notary could complete a non-standard acknowledgement because it is required in another state.

The trickier acknowledgement would be for a signing by a representative. I would think the traditional VT wording would work for a deed to be recorded in MA. For example

On this 17th day of October, 2017, before me personally appeared Wiley Coyote, to me known to be the person who executed the foregoing instrument, and he thereupon duly acknowledged to me he is the president of Acme Anvil Corp., and he executed the same to be own free act and deed, and the free act and deed of Acme Anvil Corp.

/s/ John Doe
Vermont Notary Public

Notice that the notary is not certifying that the signer actually is the president of Acme Anvil Co., the notary is merely recording that the signer acknowledged that he is the president.

23
Sep

An argument against electronic notary seals...

I argue that states should not require their notaries to use electronic notary seals, nor should they require notaries to include an electronic signature that looks like their handwritten signature.

First of all, once images of a handwritten signature or image that looks like a traditional paper notary seal has been recorded in the public records, it can easily be cut and pasted to forged documents, so they provide little security; they really provide an illusion of security.

Many documents that can support images and electronic signatures, such as Microsoft Word or PDF, can also contain embedded malware. A plain text file, on the other hand, when opened with a simple text editor such as Microsoft Notepad, will not automatically launch any malware. But plain text files do not support images.

By allowing esignature and enotarization methods that produce plain text signed and notarized documents, recipients who fear to open more sophisticated documents (and rightfully so) will be able, and hopefully, willing, to open plain text documents.

There are states that require electronic notary seals, but define the term in a way that the requirement can be satisfied with just text, no image required. In my opinion this terminology is confusing and it would be better to avoid the term "seal".

23
Aug

Castleton Democratic Town Committee caucus in September.

The Castleton Democratic Town Committee will hold a caucus, as required by Vermont law. The participants will choose members and officers of the town committee. It will be held September 19 at 6 PM. The location is the Castleton Community Center at 2108 Main Street (formerly known as The Old Homestead).

This is grass roots politics. Among those being elected will be delegates to the Rutland County Democratic Committee. That committee, in turn, elects delegates to the Vermont State Democratic Committee, which, in turn, sends delegates to the National Democratic Committee in 2020. (There are other delegates too; some of these are known as super delegates.)

So, if you want to learn where those names on the election ballots come from, come on by and see the very beginning of the process. Anyone is welcome to be a spectator, even if you're not a citizen or not 18 yet. But to participate, that is, vote, at the caucus, you must be a Castleton registered voter and not have participated this year in the caucus of another political party.

I hope to see you there.