By Bill Anderson on May 12, 2023 To celebrate the 50th anniversary of the publication of the Model Notary Act, this series of articles looks at the history of state and U.S. Notary laws.
Did you know that Notaries have been essential to the United States from its earliest times? Notaries were here in North America before there was a United States, serving as impartial witnesses in the early New England colonies from as early as 1639.
Even in those early days, lawmakers recognized the vital role Notaries played. As the nation developed and the role of Notaries evolved, the laws guiding Notaries also had to change significantly. Many Notary laws we take for granted today have only appeared in the past 50 years. Here’s a look at 5 important “firsts” in the history of Notary statutes that set important rules for future generations.
Many Notaries earn a part-time or full-time income from their commissions. One of the earliest laws allowing Notaries to charge for their services was enacted in 1650 in the Massachusetts Bay Colony. This law authorized every Notary to charge a prescribed fee “[f]or entring [a writing of procuration and letter of attourney] at lardge in his booke” and “[for] entring a bill of exchandge and protest at lardge in his booke” (original spelling used).
You might think that keeping a journal is a current practice only introduced in modern times — but you’d be surprised! While the Notary journal first appeared in the 1970s in its modern form, record-keeping requirements for Notaries have existed for hundreds of years.
Laws in Pennsylvania (1791) and the Louisiana Territory (1802) stated that Notaries were to keep “fair registers” of their official acts. An 1846 Republic of Texas law mandated that Notaries keep a “memorandum” of all official acts. An 1850 law in California (the 41st law enacted by the state at its first legislative session) required Notaries to keep a “fair record” of official acts. One hundred years before earning statehood, an 1859 Hawaiian Islands law prescribed that every Notary was to “record at length in a book of records” all notarial acts.
Today, the spirit of these early notarial records laws lives on in modern Notary journal statutes. The National Notary Association’s first model law — the Uniform Notary Law of 1973 — required Notaries to keep journals. The journal requirement has been a mainstay in every version of the Uniform Notary Act’s successor, the Model Notary Act (MNA), since. Today, 24 states require a journal of paper-based notarial acts, 25 for in-person electronic notarial acts, and 36 for remote notarial acts.
Today’s Notaries take relying on IDs such as driver’s licenses and passports to verify the identities of signers for granted. But this was not always the case. In fact, until the 1980s, state laws did not allow or specify that Notaries could identify signers with ID cards. This changed with the California appellate case of Allstate Savings & Loan Assn. v. Lotito. In 1968, the Notary in this case took the grantor’s acknowledgment of a deed that later proved to be a forgery by using an ID card to identify the grantor. On March 17, 1982 — 14 years later — a court found the Notary negligent for improperly identifying the grantor, citing an 1872 statute that required a Notary to personally know the individual who presented for notarization or rely on a credible witness. The case showed that the 1872 statute was out of step with modern identification practices. Due to the Lotito ruling, less than two months later, the California Legislature passed emergency legislation (Chapter 197 of the Statutes of 1982) explicitly permitting specified identification documents to be presented to a Notary.
In-Person Electronic Notarization
Technology has transformed our everyday lives. We make purchases from online retailers and sellers, pay by swiping and tapping credit cards or using payment services such as Apple Pay, read books in electronic form, and work remotely using online meeting services. Notaries also have been impacted by technology. As e-commerce took hold, in 1997 Florida enacted the first in-person electronic notarization statute. The states of Wisconsin, Utah, Arizona, Arkansas, Utah, and Wisconsin soon followed by passing laws of their own. In-person electronic notarization (IPEN) requires the document signer and Notary to meet face-to-face, just like a paper-based notarial act. Notaries must follow all applicable laws that pertain to traditional notarial acts when performing IPENs with one key difference: instead of using paper documents, ink pens, and physical Notary seals, IPEN requires the records, signatures, and Notary seals to be electronic. The 2002 Model Notary Act was the first cohesive and comprehensive legislative blueprint for performing IPENs. Many of the 2002 MNA provisions are reflected in state IPEN laws today, providing the foundation on which critical electronic documents can be signed and transacted.
Remote Online Notarization
Which state was the first to enact remote online notarization (RON) laws and standards? If you answered “Virginia,” good guess, but it’s not quite right. Virginia was the first state to implement RON, but technically, Utah was the first to pass a remote notarization law. In 2000, Utah enacted Senate Bill 145, which defined remote notarial acts. A corresponding administrative regulation (Utah Administrative Code R154-10-502) was adopted in 2001, setting audio and visual communications requirements during a remote notarization. Unfortunately, the state decided not to move forward with remote notarization. The Utah statute and regulation were repealed, leaving Virginia the first state to implement RON successfully in 2011.
After Virginia’s successful RON launch, the NNA published the first model act to contain remote online notarization provisions, the Model Electronic Notarization Act (MENA), in 2017. MENA’s provisions were fully integrated into the Model Notary Act in 2022, creating one cohesive Act addressing traditional, electronic and remote notarization. Today, many of the provisions of the MENA are reflected in the laws of more than 40 states with RON statutes and rules.
Bill Anderson is Vice President for Government Affairs at the National Notary Association