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TO REQUIRE ANY FEDERAL OR STATE COURT

TO RECOGNIZE ANY NOTARIZATION MADE

BY A NOTARY PUBLIC LICENSED BY A STATE

OTHER THAN THE STATE WHERE THE COURT

IS LOCATED WHEN SUCH NOTARIZATION OCCURS IN OR AFFECTS INTERSTATE COMMERCE

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 1458

MARCH 9, 2006

Serial No. 109–89

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

LAMAR SMITH, Texas, Chairman

HENRY J. HYDE, Illinois 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

RIC KELLER, Florida 

DARRELL ISSA, California 

CHRIS CANNON, Utah 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

HOWARD L. BERMAN, California 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ZOE LOFGREN, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

BLAINE MERRITT, Chief Counsel 

DAVID WHITNEY, Counsel 

JOE KEELEY, Counsel 

RYAN VISCO, Counsel 

SHANNA WINTERS, Minority Counsel 

(III)

C O N T E N T S 

MARCH 9, 2006

OPENING STATEMENT 

Page 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property .................................................................................................... 1

The Honorable Howard L. Berman, a Representative in Congress from the 

State of California, and Ranking Member, Subcommittee on Courts, the 

Internet, and Intellectual Property .................................................................... 2

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on Courts, the Internet, and 

Intellectual Property ............................................................................................ 3

WITNESSES 

Timothy S. Reiniger, Esq., Executive Director, National Notary Association 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 6

Malcolm L. Morris, Esq., Professor and Associate Dean, College of Law, 

Northern Illinois University 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 10

Dean M. Googasian, Esq., The Googasian Firm, P.C. 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 14

Mr. Michael Frank Turner, Owner, Freedom Court Reporting, Inc. 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 28

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Howard L. Berman, a Representative 

in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property ......................... 37

(1)

TO REQUIRE ANY FEDERAL OR STATE COURT 

TO RECOGNIZE ANY NOTARIZATION MADE 

BY A NOTARY PUBLIC LICENSED BY A 

STATE OTHER THAN THE STATE WHERE 

THE COURT IS LOCATED WHEN SUCH NOTARIZATION OCCURS IN OR AFFECTS 

INTERSTATE COMMERCE 

THURSDAY, MARCH 9, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 10:07 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Lamar 

Smith (Chairman of the Subcommittee) presiding. 

Mr. SMITH. The Committee on Courts, the Internet, and Intellectual Property will come to order. 

I’m going to recognize Members for opening statements, and then 

we’ll get to our witnesses’ testimony as quickly as we can. 

This morning the Subcommittee will venture into unchartered, 

but hopefully not shark-infested waters. Frankly, I cannot recall 

this Committee ever reviewing the Notary profession or how its 

members operate. 

The reason is that notaries are licensed by the individual States, 

not the Federal Government. But our colleague and friend from 

Alabama, Representative Aderholt, introduced a bill that is the 

subject of our hearing. 

His interest stems from a complaint registered by one of his constituents, who will testify as one of our witnesses today. 

For the record, a Notary Public administers oaths and serves as 

an impartial witness when documents are signed. Many States require that certain documents, such as affidavits, deeds, and powers 

of attorney, be notarized before they become legally binding on parties. 

In this respect, notaries are important participants in many legal 

and commercial transactions. 

Since the point of legal notarization is to deter fraud, a notary 

must positively identify the signatory to a document and ensure 

that he or she signs the document knowingly and willingly. 

A notary typically affixes his or her signature as well as an official seal to the document as further testament to its authenticity. 

2

Most States require an individual wishing to become a notary to 

submit an application, pay a fee, and take an oath of office. Many 

States also require an applicant to enroll in an educational course, 

pass an examination, and obtain a notary bond. 

So what does Congress have to do with notary operations? 

Legal disputes, Federal as well as State, are not always confined 

to the geographic and judicial domains of a single State. Much of 

our country’s litigation crosses State lines. 

The reason we are reviewing H.R. 1458 is that lawfully notarized 

documents in one State may not always be acknowledged in another State. 

The Subcommittee needs to investigate the extent to which this 

is a genuine problem that requires a Federal legislative response. 

We must also determine if it is appropriate to act given 10th 

Amendment sensitivities and the concern for States’ Rights. 

We have a good panel of witnesses today who can help the Subcommittee better understand the underlying subject matter and answer these questions. 

That concludes my opening statement, and the gentleman from 

California, Mr. Berman, is recognized for his opening statement. 

Mr. BERMAN. Thank you very much, Mr. Chairman. Although the 

topic of notary recognition between the States isn’t necessarily the 

most exciting issue, it’s an extremely practical one, and so I’m looking forward to hearing the witnesses’ testimony. 

Notaries are involved in many aspects of legal and commercial 

transactions, from trusts in the States to real estate. 

Currently, each individual State creates its own laws to regulate 

the notary profession. 

H.R. 1458 has been introduced in an attempt to unify and standardize the acceptance of out-of-State notarial acts by State and 

Federal courts. There have been past attempts at unifying the requirements for notarial acts; some made by the National Notary 

Association, others made by the National Conference of Commissioners on Uniform State Laws. 

Over the course of 3 decades, legislators and notary regulating 

officials have borrowed from these models in reforming State and 

territorial notary laws on inconsistent basis. 

In some cases, only a few sections were adopted into statute. In 

others, the model was virtually—was enacted virtually in its entirety. 

Fourteen fifty eight would require each Federal or State court to 

recognize out-of-State notarial acts under the following two conditions: First, where such notarization occurs in or affects interstate 

commerce; and secondly, if a seal of the notary public’s authority 

is used in the notarization; or in the case of an electronic record, 

the seal information is logically associated with the electronic 

record so as to render the record tamper resistant. 

Does the bill raise any constitutional issues? For example, does 

the bill’s language violate the 10th Amendment, which disallows 

the Federal Government’s encroachment upon the States’ reserve 

powers or would the concept of full faith and credit apply? 

I look forward to hearing what specific situations the bill is trying to address, how prevalent the problem is out of out-of-State notarial recognition and how the witnesses will address the States’ 

3

Rights issues touched on by this bill, such as the relevance and applicability of the 10th Amendment and the full faith and credit 

clause. I yield back, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Berman. The gentleman from California, Mr. Issa, is recognized, and I want to point out that Mr. 

Issa, after the Chairman and the Ranking Member, has the best 

attendance record of any other Member of this Subcommittee. Mr. 

Issa? 

Mr. ISSA. Thank you, Mr. Chairman. And I will thank you for 

holding this hearing today. Some people might think that this is 

not the most exciting issue. And they’d be right. 

However, life experience leads me to realize this is an important 

issue. As somebody in business for more than 20 years, I discovered 

that one State asks for a seal, while another State doesn’t recognize seals. If you happen to be in a State that doesn’t have a seal 

and you go to another State, and they say, where’s your corporate 

seal, you have to go make a corporate seal, even though your own 

State doesn’t have them. That sort of inconsistency in commerce in 

this day and age is unbelievable. But more so, the idea that one 

State would not recognize a notary public’s signature while, in fact, 

and I’ll be brief, my own life experience shows that more than 25 

years ago, when I had to prove that I was the grandson of a landowner in Lebanon, I simply had to get a notarized copy of the 

death certificate of my father and my birth certificate, go and have 

it certified by the county as notarized, and since I went to the county that I could do those both by going to two windows. I then went 

to a counsel general, who kept copies of all the signatures of all the 

counties’ clerks to verify that that was within my State a proper 

signature, which allowed me to go to Lebanon and have my documents recognized. 

If a quarter of a century ago, a miniscule country of less than 

3 million people could have a system for recognizing the notary 

public in the county of Cuyahoga in the State of Ohio, it is unbelievable that among the 50 States we cannot have an equally effective system without congressional action. Since it’s obvious that we 

can’t, I look forward to this hearing and the passage of the bill. 

I yield back. 

Mr. SMITH. Thank you, Mr. Issa. That’s a particularly interesting 

personal story that I hadn’t heard before, so—and it—it does impact on the subject at hand, too. 

I’d like to invite our witnesses to stand and be sworn in and then 

we’ll get to your testimony. 

If you’ll raise your right hand. 

[Witnesses sworn.] 

Mr. SMITH. Please be seated. 

Our first witness is Tim Reiniger, who is Vice President and Executive Director of the National Notary Association. Mr. Reiniger 

is an attorney who has litigated commercial disputes for more than 

10 years. He is also a fellow public official, having served as an alderman in Manchester, New Hampshire. 

Mr. Reiniger earned his bachelor’s degree cum laude from 

Georgetown University and his law degree from the University of 

Michigan. 

4

Our next witness is Malcolm Morris, Associate Dean and Professor of Law at Northern Illinois University. Professor Morris 

teaches Federal taxation, property and trusts, and estates. He has 

written numerous law review articles and practitioner-oriented 

works, including Notary Law and Practice: Cases and Materials. 

Professor Morris earned his B.S. from Cornell University, a J.D. 

from the State University of New York at Buffalo, and an L.L.M. 

from Northwestern University. 

Our third western—excuse me—third witness is Dean Googasian, 

a trial lawyer from Bloomfield Hills, Michigan. 

Before entering private practice, Mr. Googasian clerked for a 

member of the Michigan Supreme Court and worked for the U.S. 

Department of Justice. He did his undergraduate work at the University of Michigan and later graduated first in his class from 

Wayne State University Law School. 

Our final witness is Mike Turner, the owner of Freedom Court 

Reporting in Birmingham, Alabama, the largest reporting company 

in the State. He has 30 years of experience as a notary and court 

reporter and frequently travels out of State to conduct business. 

Mr. Turner was educated at the University of Alabama at Birmingham and Lipper’s Court Reporting College in Plainview, 

Texas. That gives you extra status today. 

Welcome to you all. We have your entire statements and without 

objection, they will be made a part of the record. And, Mr. Reiniger, 

we’ll begin with you. 

TESTIMONY OF TIMOTHY S. REINIGER, ESQ., EXECUTIVE 

DIRECTOR, NATIONAL NOTARY ASSOCIATION 

Mr. REINIGER. Thank you, Mr. Chairman, and honorable Representatives of the Committee. 

I am honored to be here today on behalf of the National Notary 

Association, which is the largest professional association for notaries public in the United States, with 300,000 members. I’m also 

pleased to be here today with our Vice President of Notary Affairs 

and the nation’s leading expert on notary matters and laws. That 

is Mr. Chuck Ferber, who’s sitting behind me. 

This is indeed on the surface what appears to be—kind of a dry 

subject that’s not normally discussed, but, in fact, is becoming a 

matter of central importance, particularly with respect to evidence 

and admissibility of records in court. 

Now, I do have written comments I will be submitting today, and 

I will submit those for the record. I’m going to address orally now 

just a few of the major points we see with respect to evidence. 

And, in fact, last December, the 9th Circuit Bankruptcy Court 

Panel in the American Express case issued an opinion with respect 

to electronic records and their admissibility—now, in that case not 

specifically notarized records. 

But it goes to the heart of our substitute language that we are 

submitting with respect to the electronic notary seals, and electronic documents. In the American Express case the electronic 

records were not authenticated. They were not allowed into evidence at all because of the lack of sufficient ability to prove their 

authenticity, their genuineness from the time they were created 

throughout the history of that record. 

5

Notarization at its heart is a means of proving the authenticity 

and genuineness of a document. As you all mentioned, the signer 

intentionally adopts the contents of the document as his or her act 

before the independent accountable witness, which is the notary. 

The seal is the physical evidence of the material act and the 

physical evidence proof of that individual’s official character or status as a notary. 

Now, how does the notarization establish or prove the document’s 

authenticity? In two ways: the notary verifies the identity of the 

signer and also verifies the content integrity or completeness. 

The rules of Federal evidence—of Federal Rules of Evidence and 

the most of the State rules of evidence also area based on this bedrock principle of authentication via the seal. However, these rules 

leave some gaps. They refer to seals on public documents, documents which have been acknowledged. And this has resulted in 

some uneven application in various States from our experience, including you will hear today from the State of Michigan, and that 

case concerning the affidavit. 

This bill, for the current paper world, would help to address that 

problem, to create a uniform recognition and application of documents for the notary seal for the purpose of admissibility. It does 

not speak to or require that the court enforce the document, but 

a prerequisite to enforcing the document is that it first be admissible in court, so that is the hurdle that this bill is addressing and 

that is the key reason we are supporting it. 

Now, this hurdle will become even more complicated, as I mentioned, with electronic documents, and how that authenticity is established. 

In the paper world, the notary seal is physically affixed to the 

document. The States set those requirements. The States determine the form of the seal, whether it should be affixed with an 

embossment or with a stamp or the typewritten words ‘‘notary public.’’

This bill does not, in any way, interfere with the ability or how 

the States will determine how the seal is affixed to the document. 

It merely sets a minimum standard, however, as to how these documents will be treated by a court for admissibility purposes, so it 

addresses the legal effect of the document and no way interferes 

with State rules for affixing seals or even commissioning notaries. 

A very key aspect is that, particularly for the electronic world, 

to preserve that same built-in test for authenticity that is given in 

the paper world by the seal, in the electronic. Because of the ease 

of making changes, alterations to the documents, it is essential 

that the notary seal be securely affixed to the document in such 

fashion that any changes are rendered detectable. This is absolutely essential for admissibility in court, to be able to test the authenticity of the document. This is a very important capability. 

So, again, the reasons for our support for the substitute bill is 

that one, this will preserve the ability of the notarization system 

as it currently exists, to provide integrity to commerce, both in 

paper and electronic forms. 

Mr. SMITH. Okay. Mr. Reiniger, can you conclude your testimony, 

and you’ll be able I suspect cover some of those same subjects during the question and answer period. 

6

Mr. REINIGER. Absolutely. And this bill will address the many 

current problems in the admissibility of notarized documents from 

State to State. Thank you. 

[The prepared statement of Mr. Reiniger follows:]

PREPARED STATEMENT OF TIMOTHY S. REINIGER

The National Notary Association, a non-profit professional organization serving 

the 4.5 million notaries public of the United States, is strongly in favor of the Substitute to H.R. 1458. 

This bill would require federal and state courts to admit into evidence any notarized document originating in another state, provided that document affects interstate commerce and the Notary’s seal of office is affixed to it. 

Notaries, of course, constitute one of the nation’s critical front lines of defense 

against forgery and other identity crimes, protecting the titles to our homes and 

other valuable property, as well as our rights to due process under law. Notaries 

screen document signers for identity, volition and basic awareness, thereby daily 

preventing a multitude of fraudulent acts, including those that might be committed 

to fund and support terrorist activities. 

‘FULL FAITH AND CREDIT’ DOCTRINE IGNORED

You may not be aware that, despite the ‘‘full faith and credit’’ provision of the 

U.S. Constitution’s Article IV, Section 1, lawfully notarized documents are often rejected when sent across state lines. The reasons for these rejections typically concern form and not substance. 

For example, a document notarized in State A may be rejected in State B because 

the acknowledgment certificate wording used in State A does not conform verbatim 

to that prescribed by statute or custom in State B, even though it conforms in substance. 

Another example: A document notarized in State A may be rejected in State B 

because State A by law requires notaries to use inking seals and State B by statute 

or custom requires embossers. 

Yet another example: A document notarized in State A may be rejected in State 

B because the latter state imposes special authentication rules beyond lawful notarization that State A may be unequipped to carry out. 

In almost every case, the cause of these document rejections is cosmetic and does 

not pertain to the propriety or substance of the notarial act itself. 

These frequent document rejections constitute a serious impediment to interstate 

commerce, and they impose appreciable costs on business and government. 

MODEL AND UNIFORM LAWS DO NOT SOLVE PROBLEM

One way the National Notary Association has tried to solve the problem of these 

rejections is by creating, promulgating and updating a Model Notary Act for adoption by state legislatures, so that state notary laws across the nation might become 

more uniform. Although a number of states have enacted some or all of the provisions of the Model Notary Act in its updated forms—most recently Massachusetts, 

New Mexico and North Carolina—most states have not. 

Over the years, uniform laws have been created and promulgated by the National 

Conference of Commissioners on Uniform State Laws to recognize notarial acts performed in other states and jurisdictions of the United States. These acts are: the 

Uniform Acknowledgment Act of 1939; the Uniform Recognition of Acknowledgments 

Act of 1968; and the Uniform Law on Notarial Acts of 1982, which was drafted to 

replace the two preceding acts. 

However, these uniform laws have not solved the rejection problem for three reasons. First, not all states have adopted these uniform laws; for example, only 11 

states have adopted the Uniform Law on Notarial Acts of 1982. Second, the oldest 

of these uniform laws applies only to recognition of acknowledgment notarizations, 

and not to other notarial acts such as jurats. And third, none of the uniform laws 

deals with admissibility issues and rules for the evidentiary use of the notary seal. 

NOTARY SEALS DETER AND REVEAL FRAUD

The Substitute to H.R. 1458 would much more directly and effectively address the 

problem of notarized documents being rejected for form or technical reasons after 

crossing a state border. It would require federal and state courts to accept documents that have been lawfully notarized out of state, provided these documents involve interstate commerce and bear the seal of the notary. 

7

The seal, of course, is not only the distinguishing symbol of the notary public office in both the paper and electronic world, but it is also an effective fraud-deterrent 

device that, when adroitly used, can deter or reveal fraudulent addition or replacement of the pages in a paper document. In the case of electronic documents—and 

as provided in the Substitute to H.B. 1458—any electronic seal must likewise render 

the electronic document tamper-resistant, with the capability of making evident any 

unauthorized, fraudulent attempts to alter the document. 

THE FEDERAL RULES OF EVIDENCE

The notary public seal is critical when it comes to the admissibility of evidence. 

Authentication by seal is a bedrock evidentiary principle in the Federal Rules of Evidence (902 [1] and [2]) and in the many state laws they have inspired. These rules 

reflect the evidentiary principle of authentication by seal of a public officer as a condition precedent to that document’s admissibility and entitlement to full faith and 

credit legal enforceability. It is recognized that the risk of forgery is reduced by the 

requirement of authentication by a public officer who possesses and affixes a seal. 

(See, Advisory Committee Note to FRE 902 [2].) 

Under the many state laws that mirror the Federal Rules of Evidence, documents 

under the seal of a public officer are generally considered self-authenticating. It has 

long been established that a notary is a public officer. See, for example, Pierce v. 

Indseth, (106 US at 549; 1 SCt 418 [1883]), stating that notaries ‘‘are officers recognized by the commercial law of the world.’’ As a public officer, a notary affixes a 

seal and signature to authenticate a document without the need for extrinsic evidence to prove the seal and signature’s genuineness or to confirm the notary’s capacity. 

Seal use by notaries is near universal, with 44 out of 56 U.S. states and territorial 

jurisdictions by law requiring a physical imprint of an official seal—either an embosser, an inking stamp, or both. Eleven of the remaining 12 jurisdictions that do 

not impose a formal seal requirement nonetheless have a law such as New York’s 

Executive Law (Section 137) requiring notaries to ‘‘print, typewrite, or stamp’’ such 

information as the notary’s name, county, and commission expiration date on each 

document notarized—certainly a seal requirement in all but name. 

NEW ERA OF ELECTRONIC DOCUMENTS

Increasingly, there is a significant interstate dimension to the notarial system in 

the United States, especially in this new era of notarized electronic documents, 

when digital instruments may be instantaneously sent coast to coast at the touch 

of a computer key. 

In this new electronic era, Article IV, Section 1, of the U.S. Constitution has taken 

on a new significance when it says: ‘‘Full faith and credit shall be given in each 

State to the public Acts, Records, and judicial Proceedings of every other State.’’ 

Under our federal system, full faith and credit recognition by sister states and territories is obligatory, not discretionary, provided the public act, record, or judgment 

was lawful in the U.S. state or territory of origin. The official acts of all public officials—whether judges, county clerks, recorders of deeds, justices of the peace, or notaries—are entitled to interstate recognition. 

This principle of full faith and credit was recognized in a noted 1912 case (Nicholson v. Eureka Lumber, 160 NC 33; 75 SE 730 [NC 1912]), when North Carolina accepted a notarization lawfully performed in Texas by a female notary, at a time 

when that state did not allow women to serve as notaries. 

ONE EXAMPLE OF AN IMPEDIMENT TO COMMERCE

In the experience of the National Notary Association, many of the 4.5 million notaries of the United States are veterans of what have been described as frustrating 

and time-consuming ‘‘coast-to-coast document ping-pong matches.’’ In these interstate exchanges, a document notarized, let’s say, in California may be sent for filing 

in Alabama, but an attorney or clerk in Alabama will then tear off the California 

notarial form, attach a blank Alabama form, and send it back to California with the 

note, ‘‘Use this certificate.’’ The notary, however, receiving the document a second 

time, will write a note back saying that California law obliges him or her to use 

only the notary form dictated by California statute. In this fashion, such a document 

may make three or four transcontinental trips, with accompanying phone calls and 

a hurried search for a new notary who will be less scrupulous about the wording 

of the certificates he or she notarizes. 

Indeed, in the early 1990s, the volume of such disruptive interstate standoffs 

caused the California Legislature to enact a law (Civil Code 1189[c]) stating that 

California notaries may use out-of-state acknowledgment forms on documents to be 

8

filed out of state, but must use only California’s statutory acknowledgment on documents filed in California. 

The Substitute to H.R. 1458 will lessen the need for such state laws, which should 

be seen as discomfiting evidence that the ‘‘full faith and credit’’ provision of our Constitution could use some help when it comes to interstate recognition of notarial 

acts. 

ADDITIONAL PROPOSED AMENDMENTS

To perfect this legislation, the National Notary Association does recommend several technical amendments. First, we recommend that the bill specify that only 

‘‘lawful’’ notarizations be recognized by the federal or state courts. Second we recommend that the bill reflect the fact that while some states may ‘‘license’’ their notaries, as is the current term used in the bill, others may instead ‘‘commission’’ or 

‘‘appoint’’ them. 

(Accordingly, the following changes, underlined, to the Substitute to H.R. 1458 

would result:

Each Federal court shall recognize any lawful notarization made by a notary 

public commissioned, appointed, or licensed under the laws of a State other 

than the State where the Federal court is located....

Each court that operates under the jurisdiction of a State shall appoint any lawful notarization made by a notary public commissioned, appointed, or licensed 

under the laws of a State other than the State where the court is located. . . .) 

CONCLUSION

In conclusion, I urge your support of the Substitute to H.R. 1458 as a major step 

in removing the serious impediment to interstate commerce caused by the frequent 

rejection of properly notarized documents for form or technical reasons—rejection 

that imposes appreciable delays and costs on business and government.

Mr. SMITH. Okay. Thank you, Mr. Reiniger. Mr. Morris? 

TESTIMONY OF MALCOLM L. MORRIS, ESQ., PROFESSOR AND 

ASSOCIATE DEAN, COLLEGE OF LAW, NORTHERN ILLINOIS 

UNIVERSITY 

Mr. MORRIS. Thank you, Mr. Chairman and distinguished Committee Members, for allowing me to be here today to lend my support to H.R. 1458 and explain why it will prove valuable in promoting interstate commerce. 

The bill puts in place a simple principle: an official act, properly 

performed in one State deserves recognition it its sister States. I 

think that somewhat addresses the full faith and credit issues, 

which are in my written testimony. 

I am going to stay more on text, because to allow a professor to 

free wheel, we’ll get nothing done in 5 minutes. So please bear with 

me. 

My support is based upon my view that this bill will help eliminate unnecessary impediments in handling the everyday transactions of individuals and businesses. Many documents executed 

and notarized in one State, either by design or happenstance, find 

their way into neighboring or more distant States. 

If ultimately needed in any one of the latter jurisdictions to support or defend the claim in court that document should not be refused admission solely on the ground it was not notarized in the 

State where the court sits. The bill seeks to ensure this would not 

happen. 

Significantly, H.R. 1458 includes electronic notarizations in its 

recognition regime. Doing so should be applauded. Congress enacted the Electronic Signatures and Global and National Commerce 

Act, E-sign, with an understanding of the important role electronic 

9

transactions were to play in both worldwide and national commerce. E-sign gave many electronic documents equal footing with 

their paper-based counterparts. It also recognized that electronic 

documents could be notarized. Parties using electronic documents 

generally do not anticipate face-to-face meetings with other parties 

in the transaction. 

Consequently, the need to have properly authenticated electronic 

documents is acute. Notaries public are armed with new technology 

to perform electronic notarizations equipped to meet this demand. 

This bill would provide that electronic notarizations receive the 

same interstate recognition it seeks to accord paper-based ones. 

Since many electronic documents travel over State borders, requiring that an electronic notarization be recognized irrespective of 

the State in which it was performed will help promote electronically based interstate commerce. 

Failure to do so could undercut important goals advanced by Esign. 

Two items in the bill that I think might be considered for additional changes are as follows: One, in the first paragraph of both 

sections 1 and 2, the word—I recommend the word ‘‘lawful’’ be 

added immediately before ‘‘notarizations.’’ We can—I can explain 

this in more depth during the question and answer period, but I 

feel by doing so, this would ensure State sovereignty insofar as notarial activities are concerned, which seems to be an issue that one 

of the gentlemen raised. 

I also suggest that the first paragraph of both sections 1 and 2 

have a housekeeping change in that in addition to the word ‘‘license,’’ the words—the word ‘‘commissioned’’ is added, since many 

States actually commission Notaries Publics and do not license 

them. 

Importantly, nothing in this bill, with the changes that I have 

suggested, would attempt to regulate Notaries Public or in any way 

detract from the individual States’ authority to do so. The power 

to commission and sanction Notaries Public remains within the exclusive province of the State. The bill seeks only to give cross-border recognition to notarizations executed by those persons who 

have been conferred the authority to perform them under the 

States of their—under the statutes of their commissioning States. 

In sum, the bill addresses, with my recommended change, only 

the recognition of the notarial act and does not speak to the underlying authority that gives rise to that act. 

For the above reasons, I am pleased to add my support to this 

legislative initiative. The bill recognizes society has become more 

mobile. The number of people traveling from State to State has increased. 

Additionally, advances in computer systems and technology have 

made it easy for many businesses to operate in more than one 

State. 

Consequently, more and more documents are working their way 

into interstate commerce. People and businesses relying on notarized documents deserve assurances that the documents will be respected and the legal rights created by them properly protected. By 

mandating recognition of notarial acts performed in non-forum 

States, this bill takes a giant step toward that end. 

10

Thank you 

[The prepared statement of Mr. Morris follows:]

PREPARED STATEMENT OF MALCOLM L. MORRIS

It is my pleasure to be here today to add my voice in support of the substitute 

amendment to H.R. 1458 (dated 12/1/05). My understanding is that this Bill requires Federal and State courts to recognize notarial acts performed in the United 

States but outside of the courts’ jurisdictional borders. More specifically, the Bill 

would require a Federal court to recognize a notarization performed in a State that 

was not within the territorial limits of the district or circuit in which that court sits. 

It also would require a State court to recognize a notarization performed in another 

State. 

My support is based upon my view that this Bill will help eliminate unnecessary 

impediments in handling the everyday transactions of individuals and businesses. 

Many documents executed and notarized in one State, either by design or happenstance, find their way into neighboring or more distant States. If ultimately needed 

in any one of the latter jurisdictions to support or defend a claim in court, that document should not be refused admission solely on the ground it was not notarized in 

the State where the court sits. This Bill seeks to ensure this would not happen. 

H.R. 1458 is quite sensible given what it seeks to accomplish. A notarization in 

and of itself neither validates a document nor speaks to the truthfulness or accuracy 

of its contents. The notarization serves a different function, viz, verifying that a document signer is who he or she purports to be and has willingly signed the document. Thus, it can be said that the notary public authenticates the document. By 

executing the notarial certificate, the notary public, as a disinterested party to the 

transaction, informs all other parties relying on or using the document that it is the 

act of the person who signed it. The presence of the official seal gives notice that 

the notary public acted under authority conferred to him or her by the State. Consistent with the vital significance of the notarial act, this Bill provides courts must 

accept the authenticity of the document even though the notarization was performed 

in a State other than where the forum is located. 

Significantly, H.R. 1458 includes electronic notarizations in its ‘‘recognition’’ regime. Doing so should be applauded. Congress enacted the Electronic Signatures in 

Global and National Commerce Act (15 U.S.C. Section 7006 ) (‘‘E-Sign’’) with an understanding of the import role electronic transactions were to play in both worldwide and national commerce. E-Sign gave electronic documents equal footing with 

their paper-based counterparts. It, also, recognized that electronic documents could 

be notarized. Parties using electronic documents generally do not anticipate face-toface meetings with others involved in the transaction. Consequently, the need to 

have properly authenticated electronic documents is acute. Notaries public armed 

with new technology to perform electronic notarizations are equipped to meet this 

demand. H.R. 1458 would provide that electronic notarizations receive the same 

interstate recognition it seeks to accord traditional, paper-based ones. As a result, 

an electronic document requiring a notarization could not be ignored solely on the 

basis it was not notarized in the jurisdiction where it is presented. Since many electronic documents travel over State borders, requiring that an electronic notarization 

be recognized irrespective of the State in which it was performed will help promote 

electronically-based interstate commerce. Failure to do so could undercut important 

commercial goals advanced by E-Sign. 

It could be suggested that H.R. 1458 is unnecessary because out-of-state 

notarizations should receive recognition under the United States Constitution Article IV, Section I, often referred to as the ‘‘Full Faith and Credit’’ Clause. The underlying rationale for this position is that notaries public are authorized by the State 

to perform ‘‘public’’ acts, which, by the specific language of the Clause, are entitled 

to ‘‘full faith and credit’’ and thus should be recognized throughout the States. Although they may deserve such recognition under the aegis of the Clause, current 

practice does not suggest that is happening. This Bill steps in and ensures the recognition when interstate commerce is involved, and obviates the need for parties to 

press constitutional arguments in order to achieve the desired result. 

Additionally, one could suggest the Bill is unwarranted because local law should 

control matters relating to recognition of acts in the local courts. Clearly each State 

could develop its own rule for recognizing notarizations from foreign jurisdictions. 

The weakness of this position lies in the lack of uniformity that can result. Whereas 

this may not prove to be a problem for strictly local issues, e.g., whether or not to 

admit a will to probate to govern in-state property, it can be quite troublesome for 

transactions that touch more than one State. People and businesses who execute 

documents that make their way into interstate commerce need the assurance of havVerDate 0ct 09 2002 09:19 Apr 21, 2006 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\030906\26412.000 HJUD1 PsN: 26412
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ing them accepted wherever commerce takes them. Allowing individual States to establish their own notarial recognition rules cannot guarantee that result. Consequently, the otherwise routine performance of some interstate transactions could 

be impeded. This Bill will ensure that notarizations authenticating documents affecting interstate commerce will receive proper recognition in every court in which 

they are presented. This will both facilitate interstate commerce and make sure its 

participants’ access to the judicial system is not hampered by the unexpected peculiarities of local rules. 

As the Committee Members no doubt are aware, statutes need proper wording to 

avoid unwanted results that can be caused by unanticipated interpretations of their 

language. To prevent such problems from arising, the current form of H.R. 1458 

might benefit from some slight language changes. These are noted below. 

1) In the first paragraphs of both Section 1 and Section 2, the word ‘‘lawful’’ 

should be added immediately before ‘‘notarization’’. The present language mandates 

recognition of ‘‘. . . any notarization made by a notary public licensed under the 

laws of a State other than the State where the court is located . . .’’ Generally, a 

notary public is authorized to perform notarizations only in the jurisdiction in which 

his or her commission or license is issued. One could read the current Bill language 

to suggest that recognition must be accorded notarizations executed by notaries outside of their jurisdictions even though those acts are unlawful. For example, a notary public from State X, authorized to perform notarizations only in State X, notarizes a document in State Y. Even though that notarization is not ‘‘lawful’’ (it exceeds the notary public’s authority), under the Bill it could receive recognition as 

‘‘any notarization’’ made in a State other than the State where the court sits. Limiting mandatory recognition only to ‘‘lawful’’ notarizations will clarify the legislative 

intent and preclude any interpretations suggesting the Bill seeks to override the 

limitations imposed by State-granted notarial authority. 

2) The first paragraphs of both Sections 1 and 2 reference notaries public ‘‘licensed’’ by a State. In many jurisdictions, notaries public are ‘‘commissioned’’ by the 

State. Adding the words ‘‘or commissioned’’ after the word ‘‘licensed’’ as it appears 

in each Section will ensure that notarizations of notaries public in all jurisdictions 

will be covered by the Bill. 

Importantly, nothing in this Bill attempts to regulate notaries public or in any 

way detract from the individual States’ authority to do so. The power to commission 

and sanction notaries public remains within the exclusive province of the States. 

The Bill seeks only to give nation-wide recognition to notarizations executed by 

those persons who have been conferred the authority to perform them under the 

statutes of their commissioning States. In sum, the Bill addresses only the recognition of the notarial act, and does not speak to the underlying authority that gives 

rise to the act. 

For the above reasons, I am pleased to add my support to this legislative initiative. The Bill recognizes that society has become more mobile. The number of people 

traveling from State to State has increased. Additionally, advances in computer systems and technology has made it easy for many businesses to operate in more than 

one State. Consequently, more and more documents are working their way into 

interstate commerce. People and businesses relying on notarized documents deserve 

assurances that the documents will be respected and the legal rights created by 

them properly protected. By mandating recognition of notarial acts performed in 

non-forum States, this Bill takes a giant step toward that end.

Mr. SMITH. Thank you, Mr. Morris. Mr. Googasian? 

TESTIMONY OF DEAN M. GOOGASIAN, ESQ.,

GOOGASIAN FIRM, P.C. 

Mr. GOOGASIAN. Thank you, Mr. Chairman, Ranking Member 

Berman, and Members of the Committee. 

I am pleased to appear today to provide testimony in support of 

H.R. 1458, as well as the proposed amendment, which would add 

electronic notarization, because the bill would improve the efficiency of our State and Federal courts and promote justice. 

Mr. Chairman, as you mentioned during your introduction, my 

law practice is devoted to civil litigation on behalf of individuals 

and corporations. We deal with affidavits in our practice every day. 

Notarized affidavits are required in many cases to support the 

claims and defenses that are made in court, and in other situations 

12

are used as an efficient and inexpensive method of providing necessary testimony to a court of law. Affidavits are frequently used 

to support and oppose motions, including motions for summary 

judgment, whose purpose it is to weed out cases that—where 

there’s no issue to be decided at trial. 

H.R. 1458 would remedy the very real problem that arises when 

one State refuses to recognize documents notarized in another 

State. In my home State of Michigan, for example, an appeals court 

ruled last year, incorrectly I believe, that Michigan should follow 

a statute enacted in 1879 and refuse to recognize affidavits notarized outside of Michigan unless those notarizations are certified. 

Certification under the Michigan statute requires that a Government official certify that the notary was duly authorized and that 

the notary’s signature was genuine. 

But the court also ruled that the affidavit had to be certified by 

a particular Government official, the clerk of the court in the county in which the affidavit was notarized. 

Michigan, in effect, has told every other State that that State 

must have a particular person certify the affidavit or Michigan will 

refuse to recognize it. 

In addition to the inefficiency that is required by certification in 

the area of litigation, where time is frequently of the essence, this 

refusal to recognize out-of-State affidavits raises a great danger of 

injustice. 

In 7 of the 13 States whose Representatives appear on this Subcommittee, including California, Florida, Massachusetts, New York, 

Tennessee, Utah, and Wisconsin, certification by the clerk of the 

local court is simply not available. In those States, the laws have 

been changed since 1879 to provide certification by a Secretary of 

State or perhaps another local official, but not specifically by the 

clerk of the court. 

As a result, Michigan courts may refuse to recognize valid certified affidavits from these States and others where the local clerk 

of the court does not provide certification. This creates a very real 

problem for businesses inside and outside of litigation and individuals as well. 

One troubling situation in our State confronts creditors. Michigan has a streamlined statutory process for litigating creditor disputes. Credit card companies, retail creditors, home stores, and 

auto companies are required in our State every year to file thousands of lawsuits to collect millions of dollars owed to them by 

debtors. 

Michigan’s streamlined process requires an affidavit be filed with 

the complaint stating the amount of the debt owed. If such an affidavit is filed within 10 days of its signing, the creditor is entitled 

to summary judgment if the complaint is not disputed. 

Certification in those States where it’s available frequently can 

take 10 days or more by the time the affidavit is sent to the local 

public official and returned. 

But this problem is not limited, of course, to creditors. It applies 

to any corporation having offices outside a particular State or even 

employees who are located outside a particular State, and creates 

a very real risk that they will either not have their affidavit recogVerDate 0ct 09 2002 09:19 Apr 21, 2006 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\030906\26412.000 HJUD1 PsN: 26412
13

nized or be forced to go to the cost and expense of travel, either 

to Michigan or to another State where the affidavit is recognized. 

In my own practice, it affects where we can look for particular 

experts and on behalf of the corporations we represent, it makes 

it more difficult for them to become effectively involved in Michigan’s courts. 

I thank you for the opportunity to appear and testify in support 

of this legislation. Thank you. 

[The prepared statement of Mr. Googasian follows:]

14

PREPARED STATEMENT OF DEAN M. GOOGASIAN


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Mr. SMITH. Thank you, Mr. Googasian. Mr. Turner? 

TESTIMONY OF MICHAEL FRANK TURNER, OWNER,

FREEDOM COURT REPORTING, INC. 

Mr. TURNER. Thank you for letting me come here. This is quite 

an honor, and it’s a long way from rural Alabama and even Plainview, Texas to Washington, D.C., and as a matter of fact I was 

asked if I was from Texas this morning in a cab on the way over 

here, Mr. Chairman, so know that I talk like I’m from Texas. 

But it’s an honor to be here and to be among these people here 

and, you know, I’m in a different realm. I’m a court reporter for—

and I’ve submitted my testimony already for you guys, and been 

doing this 30 years; and have been ever since the get go of coming 

out of Plainview, Texas and going to work in Alabama as court reporter been on the road taking depositions, and that’s my function 

in this judicial system here in the United States, and have been 

administering oaths all over the U.S. by agreement. We have to get 

an agreement when we’re taking a deposition. 

And it’s just been a constant thing over the years, and I had one 

of my staff people pull the records, and it’s attached to my affidavit 

of what just our little firm covered in January and February outof-State depositions of this year, and it was 170. And there are 

much bigger firms than ours across the country that are doing the 

same thing, and it just would make things a lot easier on us and 

not have that technical question of whether or not the deposition 

is going to be admitted when the time comes. 

Again, it’s just an honor to be here, and that’s—I hope that y’all 

will see fit to pass the bill, and like I said, I don’t see it takes away 

from anybody in any capacity. It just further extends the territory 

and scope of those of us who’ve already passed the test I’ll call it 

to become a notary in our local States. 

[The prepared statement of Mr. Turner follows:]

28

PREPARED STATEMENT OF MICHAEL FRANK TURNER


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Mr. SMITH. Okay. 

Mr. TURNER. Okay. 

Mr. SMITH. Thank you, Mr. Turner. 

Let me address my first question to Mr. Reiniger and Mr. Morris, 

and this goes to something that I mentioned in my opening statement. We have the 10th Amendment, States’ Rights. 

Does this bill present any constitutional questions that we need 

to be concerned with because of the 10th Amendment? 

Mr. REINIGER. Thank you, Mr. Chairman. We do not believe that 

there is a 10th Amendment problem with this bill. We are fully 

aware—our national association deals with the 50 commissioning 

officials and the 50 States or generally the Secretaries of State, and 

the States do regulate the notaries. They set all the commissioning 

requirements. They determine, as I mentioned earlier, the forms of 

the seals to use and that does vary, whether it’s an embosser or 

a stamp. 

Every State but one does require some form of evidence of the 

official status of the individual as a notary, which we refer to as 

the seal or the seal information. 

This bill deals with the legal effects of documents that have been 

notarized, so we do not—we see it as a totally different issue, the 

legal effect of the document, admissibility versus rules of procedures for notaries. 

Mr. SMITH. Okay. Thank you. Mr. Morris, do you have any constitutional concerns here? 

Mr. MORRIS. No, unless we—you know without the word ‘‘lawful,’’ if you’re just looking for at or recognizing the lawful act of a 

notary in State X to be recognized in State Y, I don’t see any constitutional issues. 

Mr. SMITH. Okay. 

Mr. MORRIS. If you are going to have the bill go forward as is, 

I could see someone raise the argument that by allowing any notarization performed anywhere in the country even though the notary 

is performing it in a jurisdiction in which he is not licensed, that 

that could be an extension of authority to give notaries to act beyond their own jurisdictional borders. 

Mr. SMITH. Okay. At first glance, your suggestions of inserting 

those words ‘‘lawful’’ and ‘‘commissioned’’ in those particular places 

I think is a good one. We’ll double check it, but that may well help 

the bill. 

A question I had for you, though, Mr. Morris, was we heard Mr. 

Googasian mention a while ago the problems that have been created by Michigan requiring the certification out of State, and, Mr. 

Googasian, you mentioned a half a dozen States, including California, where that certification is apparently impractical or not existent, and so there are problems there. But do you know of any 

other problems that have been created by the current system that 

would be solved by this particular piece of legislation? 

Mr. MORRIS. Not specifically other than the inclusion of the electronic section would make clear that electronic documents would be 

given the same accord. 

Mr. SMITH. Okay. And you anticipated a later question as far as 

the electronic notarization, so I appreciate your comments on that. 

31

Mr. Googasian, as I said, you mentioned the problems created by 

Michigan saying that they had to be certified if they were out of 

State. There was something in your testimony that made me want 

to ask you about the experience perhaps of other countries. I don’t 

know that you mentioned the European Union, but do we have 

anything to learn from the experiences of other countries as far as 

the bill goes? 

Mr. GOOGASIAN. With respect to other countries, I guess what I 

would point to Mr. Chairman is the Hague Convention and the requirement among the countries who are party to the Hague Convention that the documents be recognized with a particular certification, an apostille I believe is what is required, a particular document from a particular Government official. 

The current stance in Michigan raises a very real question about 

whether even a document that would be acceptable in a foreign 

country, coming, for example, from California, would be admitted 

into a court in Michigan, so you have the sort of irony that one of 

the sister States wouldn’t recognize something that would be admissible in any of the many——

Mr. SMITH. Okay. 

Mr. GOOGASIAN [continuing]. Hague Convention countries. 

Mr. SMITH. Thank you. As I say, you’ve mentioned some specific 

problems with the current system that would be addressed by this 

legislation, and that’s why that’s particularly helpful. 

Mr. Turner, I wanted to ask you a question, and that is that assuming that we address the constitutional problems and assuming 

that the problems that we are hearing about are real and I think 

that they are, I’m looking for who might be opposed to this legislation. Do you think that there would be out-of-State notaries who 

would be opposed to the bill because frankly it would—they would 

be in competition with others from out of State and lose some business or is that a—do you know of anyone who would be adversely 

impacted by this legislation, particularly out-of-State notaries? 

Mr. TURNER. I don’t. I mean I thought of that, you know, when 

we were talking about this, and for sake——

Mr. SMITH. I mean presumably there are a lot of out-of-State notaries who are losing business because of the need to either get a 

document notarized again within that State’s boundaries, and they 

would—but you haven’t heard of any problems in that regard? 

Mr. TURNER. No, and our experience has been, Mr. Chairman 

that when we show—when we go—in our particular instance, 

where we’re taking depositions, for us to try to hire a local notary 

to come notarize a deposition is it’s generally not worth their time 

for what they charge to come do that. And I——

Mr. SMITH. Okay. 

Mr. TURNER [continuing]. So I don’t see that as a problem. 

Mr. SMITH. Okay. May I—just a real quick personal question, although my time is up. What does it take to become a notary in 

Texas today? Do you know? 

Mr. TURNER. I do not know in Texas. 

Mr. SMITH. Okay. Thank you, Mr. Turner. It used to be so easy 

I worried about, to tell you the truth. 

Thank you. The gentleman from California, Mr. Berman, is recognized for his questions. 

32

Mr. BERMAN. Probably an obligation to support the Republican 

Party. 

Obligation to support the Republican Party, if you want to given 

note. It is a patronage position in Texas. 

Given that notaries may have to follow different rules in different States when performing a notarial act, maybe this is for Professor Morris, if one State requires notaries to inquire into whether 

the principal shows a demeanor such that he or she cannot appreciate the consequences of the act or if there is evidence to suggest 

compulsion, should the State that requires inquiry into these matters have to accept documents acknowledged or witnessed by a notary in the State that does not? In other words, one State is silent 

on it. The neighboring State says you can’t notarize a signature unless you’ve established this person knows the consequences of what 

he’s signing or isn’t doing it under compulsion, does the State that 

makes that requirement have to accept notaries from States that 

don’t? 

Mr. MORRIS. Well, I—Congressman, I don’t think they have to 

accept notaries. I think they’re accepting the document for what it 

purports to be. That would not preclude any party to that document to go into court and challenge the efficacy of the document 

itself. Wills are a perfect example. 

Mr. BERMAN. I have evidence that this guy—there was a third 

person in the room who had a gun to the guy’s head and——

Mr. MORRIS. That’s what will contests are all about. Due formality has been met. 

Mr. BERMAN. Okay. 

Mr. MORRIS. But all this is saying is you can’t throw it out just 

because in State X we don’t require that inquiry. It’s still available. 

The parties who are challenging the document would not precluded 

from that action. 

Mr. BERMAN. A notary—the fact of the seal doesn’t prevent 

the——

Mr. MORRIS. I would not——

Mr. BERMAN [continuing]. Challenge to the——

Mr. MORRIS. I think notarized documents are challenged all the 

time. 

Mr. BERMAN. You’ve stated in your testimony that the purpose 

of this bill—well, does anybody disagree with that? 

Mr. REINIGER. Representative Berman, I would just add that we 

are concerned about this very question that you have about the 

lawfulness of the notarization and its varying requirements around 

the country, particularly in the area of electronic documents, which 

is just now emerging, the whole area of electronic notarization. 

California, for example, requires an electronic image of the seal 

to be placed on the document. The Commonwealth of Pennsylvania 

just recently issued rules, the Secretary of the Commonwealth, that 

sets up a requirement that every notary use a digital certificate, 

because that State is viewing notarization as a security procedure 

for the document. 

Colorado has yet a different system of security, which involves 

the issuance of authentication numbers from the Secretary of State 

to individual notaries. I was telling Mr. Googasian that Michigan 

and Texas have authorized electronic notarization, but with no 

33

clear standards at all. It could be any type of click button or seal. 

So it will raise the concern that how will one State recognize the 

documents coming in from another, like, for instance, the Commonwealth of Pennsylvania is saying there needs to be a high level of 

security to the document that’s notarized. Do they need to accept 

documents coming in from Michigan or elsewhere that have no security procedures connected to the notarization? 

Mr. BERMAN. Well, that problem exists right now. 

Mr. REINIGER. Right. 

Mr. BERMAN. Now, this bill passes, and it says that if it’s—if 

it’s—if the notarization occurs or it affects interstate commerce in 

the case of an electronic record, Federal courts must recognize a 

notarization if the seal information is securely attached to or logically associated with the electronic record so as to render the 

record tamper resistant. 

Does the California law meet that requirement? 

Mr. REINIGERMORRIS. Not completely in its current form. It is an 

attempt at a level of security. 

Mr. BERMAN. So, then, if this bill were to become law, this bill 

doesn’t require Federal courts to accept—it doesn’t require them to 

recognize that notarization from the other State? Where the Federal court is located, it doesn’t require them to accept out-of-State 

notarizations, and we’re in a situation where the law is right now? 

Mr. REINIGER. Well, it would address the issue of self-authentication, so in other words, the notarial acts could be enforced, but it 

would be a matter of acquiring extrinsic evidence, perhaps a certification of the notarial act of California, unless it meets the minimum security requirement. So that’s—it goes to the issue of selfauthentication without requiring additional evidence. 

Mr. MORRIS. Mr.—Congressman, if I may, but if you think your 

argument through and this bill passed——

Mr. BERMAN. One thing I can assure is I haven’t. 

Mr. MORRIS. I’m sure you have. 

Mr. BERMAN. No. I’m not sure I haven’t. 

Mr. MORRIS. Oh. Is that would encourage States to meet the test 

to put into place procedures that would be satisfactory, consistent 

with this statute, and then there wouldn’t be any problems. And 

really E-sign was an example of that, where Congress stepped forward and told the States, look, you have to start thinking about 

interstate electronic transactions and here’s the rule. And you can 

opt out of the Federal rule by adopting UETA or a similar statute 

because that provides what we want. And I think that——

Mr. BERMAN. Yeah. It’s like——

Mr. MORRIS [continuing]. Worked very nicely. 

Mr. BERMAN [continuing]. Like a Federal law that says you want 

any Federal money for your law school, you accept recruiters from 

the military on your campus. It encourages people—local law 

schools and State law schools to accept military recruiters, which 

is all right with me, but it’s——

Mr. MORRIS. I think there—I think we could draw a difference 

between promoting commerce and, you know, political issues that 

are raised with the military——

Mr. BERMAN. No. No. 

34

Mr. MORRIS [continuing]. But you’re right. It’s the same concept. 

This promotes—promoting a goal. Absolutely. 

Mr. BERMAN. The only question here is do we want to create that 

dynamics with the passage of a Federal law that gets States to 

change what they would otherwise do. And——

Mr. MORRIS. I would say to get them to change to do something 

they’re not doing, which the rest of the world is. And I think they 

may have maybe——

Mr. BERMAN. Well, I’m fine with using Federal power to do that. 

The Republicans used to be concerned about that, but they aren’t 

anymore. So. 

Mr. MORRIS. Well, I want to leave this room safely, so I’ll make 

no comment. 

Mr. BERMAN. Thank you. 

Mr. SMITH. Thank you, Mr. Berman. Mr. Berman’s last question 

reminded me of a question I didn’t ask that I’d like to now. And 

it had to do with the reform, and, Mr. Reiniger, you may be the 

best one to answer this. What—there was a reform effort made to 

change the notary statutes in a number of States, but only about 

a dozen States have adopted those particular reforms that would 

answer some of the questions that have been raised today and respond to some of the problems that have mentioned. Why is that 

more States have not adopted the model notary statutes? 

Mr. REINIGER. Via the States have—they all, like I have mentioned, 50 different approaches to the notary laws. A lot of them 

are served by history, cultural influences. 

The—and we have seen trends from the New England States 

that from the colonial traditions, which tend to have more 

barebones laws, and as you head to the West, greater regulation. 

So the State of California has probably the most outstanding set 

of laws and regulations to protect the public; the strongest educational requirements on notaries, for example. So there’s a wide 

variety, and in every State certainly we advocate for the Model Notary Act, which we put together with a committee of law professors 

in 2002, not the latest version, a lot of States culturally don’t necessarily see the need for education, so there is—we run into that 

issue quite a bit. 

Mr. SMITH. Okay. Well, in that case, why impose a national 

standard on them that might be uncomfortable to them culturally 

to use your word? 

Mr. REINIGER. Well, in this case, we like this bill, because it’s 

talking about a standard for the legal effects of the material act, 

the admissibility of it, not at all interfering with the State requirements for education, regulation of the notaries themselves. 

We believe that this minimum standard, which would be very 

beneficial to consumers and business commerce, would also have 

the effect of helping our efforts to professionalize notaries, to raise 

their standards. 

Mr. SMITH. Are you aware of any States—notary organizations 

who would oppose legislation like this? 

Mr. REINIGER. We are absolutely not. 

Mr. SMITH. Okay. 

Mr. REINIGER. We’re not aware of any opposition to this proposal. 

35

Mr. SMITH. Okay. All right. That answers my question. I thank 

you all, and, Mr. Turner, thank you for you coming the greatest 

distance, and we appreciate your testimony as well as the testimony of everyone here. 

I’m not sure what the next step will be, but it sounds to me like 

there is near consensus of support for this legislation, so it may 

well be that we will look for an opportunity to move it along and 

hopefully that will prevent some of the problems that we heard 

about today, specifically those problems mentioned by Mr. 

Googasian and also, as you said, Mr. Reiniger, help promote trade 

and commerce as a result of passing this legislation as well. 

So we appreciate Mr. Aderholt’s coming to me months ago and 

telling me about the problems that he had seen firsthand and probably heard about firsthand from you, Mr. Turner. So thank you 

again for being here and for your testimony, and we stand adjourned. 

[Whereupon, at 10:53 a.m., the Subcommittee was adjourned.] 

(37)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

Mr. Chairman, 

Thank you for scheduling this hearing on H.R. 1458, which requires recognition 

of out of state notarizations by Federal and State courts. Although the topic of notary recognition between the states is not the most exciting issue—it is an extremely 

practical one. 

Notaries are involved in many aspects of legal and commercial transactions from 

trusts and estates to real estate. Currently, each individual state creates its own 

laws to regulate the notary profession. H.R. 1458 has been introduced in an attempt 

to unify and standardize the acceptance of out-of-state notarial acts by state and 

federal courts. There have been past attempts at unifying the requirements for notarial acts: some made by the National Notary Association through the Uniform Notary Act of 1973 and its successors, the Model Notary Acts of 1984 and 2002; and 

others made by the National Conference of Commissioners on Uniform State Laws 

when it enacted the Uniform Acknowledgement Act of 1939, the Uniform Recognition of Acknowledgements Act of 1968, and then finally the Uniform Law on Notarial Acts in 1982. Over the course of three decades, legislators and notary-regulating 

officials have borrowed from these models in reforming state and territorial notary 

laws on inconsistent bases. In some cases, only a few sections were adopted into 

statute; in others, the model was enacted virtually in totality. 

H.R. 1458 would require each Federal or State court to recognize out of state notarial acts under the following 2 conditions: (1) where such notarization occurs in 

or affects interstate commerce; and (2) if a seal of the notary public’s authority is 

used in the notarization; or in the case of an electronic record, the seal information 

is logically associated with the electronic record so as to render the record tamperresistant. 

I hope the witnesses can delve into the constitutional issues presented by this bill. 

For example, does the bill’s language violate the Tenth Amendment, which disallows 

the federal government’s encroachment upon the States’ ‘‘reserved powers’’ or would 

the concept of Full Faith and Credit apply? 

Additionally, given that notaries may have to follow different rules in different 

states when performing a notarial act, if one state requires notaries to inquire into 

whether the principal shows a demeanor such that he or she cannot appreciate the 

consequences of the act or if there is evidence to suggest compulsion, should the 

state that requires inquiry into these matters have to accept a document acknowledged or witnessed by a notary in a state that does not? 

Again, I look forward to learning what specific situations the bill is trying to address, how prevalent the problem is of out-of-state notarial recognition, and how the 

witnesses will address the states’ rights issues touched on by this bill, such as the 

relevance and applicability of the 10th Amendment and the Full Faith and Credit 

Clause. 

I yield back the balance of my time.

Æ