Prior Laws.

Former chapter 1 of Title 51, Idaho Notary Public Act, which comprised the following sections, was repealed by S.L. 2017, ch. 192, § 1, effective July 1, 2017.

51-101. Short title. [I.C.,§ 51-101, as added by 1984, ch. 259, § 2, p. 620.]

51-102. Definitions. [I.C.,§ 51-102, as added by 1984, ch. 259, § 2, p. 620.]

51-103. Power of appointment — Term — Reappointment. [I.C.,§ 51-103, as added by 1984, ch. 259, § 2, p. 620.]

51-103A. Change of name or address — Fee. [I.C.,§ 51-103A, as added by 1980, ch. 157, § 2, p. 332, was repealed by S.L. 1984, ch. 259, § 1.]

51-104. Qualification for appointment. [I.C.,§ 51-104, as added by 1984, ch. 259, § 2, p. 620; am. 1992, ch. 234, § 1, p. 700.]

51-105. Appointment procedure — Oath. [I.C.,§ 51-105, as added by 1984, ch. 259, § 2, p. 620; am. 1992, ch. 234, § 2, p. 700; am. 1994, ch. 145, § 1, p. 324; am. 2015, ch. 244, § 32, p. 1008.]

51-106. Seal. [I.C.,§ 51-106, as added by 1984, ch. 259, § 2, p. 620; am. 1998, ch. 146, § 1, p. 516.]

51-107. Powers and jurisdiction. [I.C.,§ 51-107, as added by 1984, ch. 259, § 2, p. 620; am. 2007, ch. 312, § 1, p. 880.]

51-108. Disqualifying interests. [I.C.,§ 51-108, as added by 1984, ch. 259, § 2, p. 620.]

51-109. Forms for notarial acts. [I.C.,§ 51-109, as added by 1984, ch. 259, § 2, p. 620; am. 2002, ch. 32, § 24, p. 46; am. 2007, ch. 312, § 2, p. 880.]

51-110. Notary fee. [I.C.,§ 51-110, as added by 1984, ch. 259, § 2, p. 620.]

51-111. Duties. [I.C.,§ 51-111, as added by 1984, ch. 259, § 2, p. 620; am. 1985, ch. 255, § 1, p. 708.]

51-112. Official misconduct. [I.C.,§ 51-112, as added by 1984, ch. 259, § 2, p. 620; am. 1994, ch. 145, § 2, p. 324.]

51-114. Removal procedure. [I.C.,§ 51-114, as added by 1984, ch. 259, § 2, p. 620; am. 1985, ch. 255, § 2, p. 708; am. 1992, ch. 234, § 3, p. 700; am. 1994, ch. 145, § 4, p. 324; am. 2015, ch. 244, § 34, p. 1008.]

51-115. Resignation or death. [I.C.,§ 51-115, as added by 1984, ch. 259, § 2, p. 620.]

51-116. Cancellation procedure. [I.C.,§ 51-116, as added by 1984, ch. 259, § 2, p. 620.]

51-117. Conditions impairing validity of notarial act. [I.C.,§ 51-117, as added by 1984, ch. 259, § 2, p. 620.] 51-118. Civil liability of notary public and employer. [I.C.,§ 51-118, as added by 1984, ch. 259, § 2, p. 620.]

51-119. Criminal penalties. [I.C.,§ 51-119, as added by 1984, ch. 259, § 2, p. 620.]

51-120. Notary handbook. [I.C.,§ 51-120, as added by 1984, ch. 259, § 2, p. 620.]

51-121. Filing fees. [I.C.,§ 51-121, as added by 1984, ch. 259, § 2, p. 620; am. 1985, ch. 255, § 3, p. 708.]

51-122. Severability. [I.C.,§ 51-122, as added by 1984, ch. 259, § 2, p. 620.

51-123. Transition. [I.C.,§ 51-123, as added by 1984, ch. 259, § 2, p. 620, was repealed by S.L. 2011, ch. 151, § 25, effective July 1, 2011.]

Another former§§ 51-101 to 51-112 were repealed by S.L. 1984, ch. 259, § 1, effective January 1, 1985:

51-101. (1867, p. 47, § 1; 1873, p. 59, § 1; R.S., § 285; reen. R.C., § 231; am. 1915, ch. 45, § 1, p. 131; reen. C.L., § 231; C.S., § 208; I.C.A.,§ 50-101; am. 1974, ch. 5, § 2, p. 23).

51-102. (1867, p. 47, § 2; 1868, p. 99, § 1; R.S., § 286; am. R.C., § 232; am. 1915, ch. 45, § 2, p. 131; reen. C.L., § 232; C.S., § 209; I.C.A.,§ 50-102; am. 1980, ch. 157, § 1, p. 332).

51-103. (1867, p. 47, § 3; 1868, p. 99, § 2; R.S., § 287; am. R.C., § 233; reen. C.L., § 233; C.S., § 210; am. 1921, ch. 225, § 1, p. 513; I.C.A.,§ 50-103; am. 1949, ch. 283, § 3, p. 582).

51-103A. (I.C.,§ 51-103A, as added by 1980, ch. 157, § 2, p. 332).

51-104. (1867, p. 47,§§ 4-11; R.S., § 289; am. R.C., § 236; am. 1915, ch. 45, § 3, p. 131; am. C.L., § 236; C.S., § 211; I.C.A.,§ 50-104; am. 1979, ch. 203, § 1, p. 584).

51-105. (1867, p. 47, § 12; R.S., § 290; reen. R.C. & C.L., § 237; C.S., § 212; I.C.A.,§ 50-105).

51-106. (1867, p. 47, § 14; R.S., § 291; reen. R.C., § 238; am. 1915, ch. 45, § 4, p. 131; reen. C.L., § 238; C.S., § 213; I.C.A.,§ 50-106).

51-107. (1867, p. 47, § 16; R.S., § 292; reen. R.C. & C.L., § 239; C.S., § 214; I.C.A.,§ 50-107).

51-108. (R.S., § 293; am. 1907, p. 156, § 1; reen. R.C. & C.L., § 240; C.S., § 215; I.C.A.,§ 50-108).

51-109. (R.S., § 294; am. R.C., § 241; reen. C.L., § 241; C.S., § 216; I.C.A.,§ 50-109).

51-110. (1867, p. 47, § 13; R.S., § 295; reen. R.C. & C.L., § 242; C.S., § 217; I.C.A.,§ 50-110).

51-111. (1915, ch. 45, § 6, p. 131; compiled and reen. C.L., § 242a; C.S., § 218; I.C.A.,§ 50-111).

51-112. (1921, ch. 163, § 1, p. 360; I.C.A.,§ 50-112; am. 1945, ch. 68, p. 86; am. 1969, ch. 148, § 1, p. 473).

Former§§ 51-106, 51-109 and 51-111 were previously repealed by S.L. 1980, ch. 157, § 3.

Amendments.

The 2019 amendment, by ch. 160, added “(2018)” at the end of the section.

Effective Dates.

Section 7 of S.L. 2019, ch. 160 provided that the act should take effect on and after January 1, 2020. COMMENT TO OFFICIAL TEXT

This Act is a revision of the Uniform Law on Notarial Acts as approved by the National Conference of Commissioners on Uniform State Laws in 1982.

It provides for the recognition of notarial acts performed in this state, in other states, under the authority of a federally recognized Indian tribe, under federal authority, and in foreign jurisdictions. It applies to notarial acts whether performed with respect to tangible or electronic records.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-102 was repealed. See Prior Laws,§ 51-101.

“Acknowledgment.”

“Acknowledgment.” An acknowledgment is a common form of notarial act in which an individual declares before a notarial officer that the individual has executed or signed the record for the purpose or purposes stated in the record. The declaration is made in the presence of the notarial officer. See Coast to Coast Demolition and Crushing, Inc. v. Real Equity Pursuit, LLC, 226 P.3d 605, 608 (Nev. 2010).

It is a common practice for the acknowledging individual to sign the record in the presence of the notarial officer. However, actually signing the record in the presence of the notarial officer is not necessary as long as the individual declares, while in the presence of the officer at that time the acknowledgment is made, that the signature already on the record is, in fact, the signature of the individual.

If the record is signed by an individual in a representative capacity, the individual also declares to the notarial officer that the individual has proper authority to execute the record on behalf of the principal (see Section 2(4)).

“Electronic.”

As with the Uniform Electronic Transactions Act, the term “electronic” is descriptive and its reach is not intended to be limited to technologies that are technically or purely electronic in nature (see UETA § 2, Comment 4). Rather, it is intended to be a collective term and applies to all “similar” technologies that involve the generation, transmittal, or storage of information in an intangible format.

Electromagnetic technologies that generate, transmit, and store information in intangible formats are electronic in nature. Thus, for example, the typical computer hard drive is a device that stores information electronically. Optical technologies that generate, transmit, or store information in intangible formats are also included within the meaning of the term. Although some aspects of optical technologies may not be truly electronic in nature, they are considered to be electronic because they create or manipulate information in an intangible format. Thus, for example, fiber optic cable is a means of transmitting information electronically. The listing of specific technologies in this section is not intended to be static or limited to those created or in use at the time of the adoption of this Act. As electronic technologies continue to develop and evolve, even if they involve competencies other than those listed, they are also included in this definition if they perform the function of generating, transmitting, or storing information in an intangible format from which the information may subsequently be retrieved and viewed in a perceivable format.

The term “electronic” in this Act has the same meaning as it has in UETA § 2(5), ESign § 106(2), and URPERA § 2(2).

“Electronic signature.”

The term is similar to the definition used in UETA § 2(8), ESign § 106(5), and URPERA § 2(4).

“In a representative capacity.”

“In a representative capacity.” The term “in a representative capacity” refers to the role in which an individual signs a record or makes a statement with respect to which a notarial act is performed. Specifically, it indicates that the individual who signs a record or makes the statement is doing so as a representative of another person, a principal, and not on the individual’s own behalf. A representative with proper authority binds the principal as if the principal signed the record. The authority to perform an act in a representative capacity may be derived from the position the individual holds (e.g. corporate officer) or from a specific grant of authority to the individual (e.g. attorney in fact). Whether a person is authorized to act in a representative capacity is a fact to be determined under the agency law of the state.

In this Act, the term is used Section 2(1) and in the short form acknowledgment provided in Section 16(2).

“Notarial act.”

“Notarial act.” The term “notarial act” encompasses a notarial act whether authorized in this Act or by other law of this state (see also Section 4(a)). This subsection lists those notarial acts specifically authorized by this Act. The listed notarial acts include taking an acknowledgment, administering an oath or affirmation, taking a verification upon an oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy of a record, and noting a protest of a negotiable instrument.

“Notarial officer.”

This Act applies to a notarial act regardless of whether it is performed with respect to a tangible record, such as paper, or with respect to an electronic record. Other Uniform Laws, including UETA, ESign, and URPERA, specifically authorize the creation, transfer, storage, and recording of electronic records just as other law has traditionally authorized records on tangible media. This Act specifically authorizes notarial acts to be performed with respect to electronic records. “Notarial officer.” The term “notarial officer” includes a notary public as well as other individual having the authority to perform notarial acts under other state, tribal, or federal law or the law of a foreign state. Thus, for example, judges, clerks, and deputy clerks are notarial officers (see Sections 10(a)(2), 11(a)(2), 12(a)(2) and 13(a)(1)). Similarly, in some states, attorneys at law, by the fact that they are attorneys at law, are also notarial officers (see Section 10(a)(3)). Also, an individual designated as a notarizing officer by the United States Department of State for performing notarial acts overseas is also a notarial officer for that purpose (see Section 13(a)(3)). Other persons, whether by state law, federal law, tribal law, or the law of a foreign state, may also be notarial officers (see generally Sections 10 through 14.)

Many of the provisions of this Act apply broadly to all notarial officers regardless of the source of their authority. However, some provisions, such as those in Sections 17 through 25, apply only to notaries public.

“Notary public.”

“Official stamp.”

“Official stamp.” The term “official stamp” refers to an image containing specified information that a notarial officer attaches to or associates with a certificate of notarial act, which is itself on, attached to, or associated with a record. The contents and characteristics of the “official stamp” are set forth in Section 17(a).

On a tangible record, the image is a physical one appropriately located on, or attached to, the certificate of notarial act. It may be applied to the surface of the certificate, as with a rubber stamp and ink, or it may be applied by compression or embossment, as with a seal. On an electronic record, the image is in an electronic format and attached to, or logically associated with, the electronic certificate of notarial act. Being an electronic image, the image must be viewed through a device such as a computer monitor or printed out in order to be humanly perceivable.

An “official stamp” is to be distinguished from the device by which the image is affixed on, attached to, or associated with a certificate of notarial act; that device is identified as a “stamping device” and is defined in Section 2(13).

“Person.”

“Record.”

An electronic medium is one on which information is stored electronically. The information is humanly perceivable only by means of a device that interprets the electronic information in the record and makes it readable. For example, electronic information may be stored on a hard disk and it may be retrieved and read in a humanly perceivable form on a computer monitor or a paper printout. Traditionally, especially if the tangible medium is paper, a record has been referred to as a “document.” In this Act, the word “record” replaces the word “document” and includes information regardless of whether the medium is tangible or electronic. The definition of the word “record” in this Act is the same as the definition of that word in UETA § 2(13) and ESign § 106(9). It also is the same as the definition of the word “document” as used in URPERA § 2(1).

“Sign” and “Signature.”

“Sign” and “Signature.” Subsections (11) and (12) of this Act define the related words “sign” and “signature.” An individual may “sign” his or her name to a record either on a tangible medium or an electronic medium as long as the individual has the present intent to authenticate or adopt the record so signed. The verb “sign” includes other forms of the verb, such as “signing.” Except as provided in Section 9, an individual must personally perform the act of signing a record.

A symbol located on, or associated with, a tangible or electronic record that is the result of the signing process is an individual’s “signature.” The usual symbol an individual uses as the individual’s signature is the individual’s given name. If, instead of using the individual’s given name, however, an individual uses an alternative symbol as the individual’s signature, such as an “X,” the individual may affix that symbol to the record as the individual’s signature.

Nothing in the definitions of the words “sign” or “signature” or of the word “record” (prior subsection) imposes a security process or standard in the definition of those words. When a means of security is imposed, it is done by a requirement in a separate section (see, for example, Section 20).

“Stamping device.”

In an electronic format, the stamping device is an electronic process or technology that associates unique information identifying the notarial officer with the certificate of notarial act that is affixed to, or associated with, an electronic record. The means of identifying the notarial officer may, for example, be a security card, password, encryption device, or other system that allows access to an electronic process that associates the officer’s unique information with the certificate of notarial act on an electronic record. The electronic process may be located on, for example, a desktop or laptop computer; a flash drive or other peripheral device used in connection with a computer: a portable electronic device such as a Blackberry or iPhone; or a secure website on the Internet. The means of identifying the notarial officer and the electronic process are collectively the stamping device. The result, although attached to, or associated with, an electronic certificate of notarial act, will be perceivable only by means of a device such as a computer monitor that is capable of presenting it in a perceivable format.

“State.”

“Verification upon [on] oath or affirmation.”

“Verification upon [on] oath or affirmation.” A “verification upon oath or affirmation” is a common form of notarial act. It is a declaration by an individual before a notarial officer in which the individual states on oath or affirmation that the declaration is true. This declaration is sometimes referred to as an “affidavit” or “jurat.” See Coast to Coast Demolition and Crushing, Inc. v. Real Equity Pursuit, LLC, 226 P.3d 605, 608 (Nev. 2010).

Prior Laws.

Former§ 51-103 was repealed. See Prior Laws,§ 51-101.

Compiler’s Notes.

The phrase “the effective date of this act” refers to the effective date of S.L. 2017, chapter 192, which was effective on July 1, 2017.

Prior Laws.

Former§ 51-104 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2019 amendment, by ch. 160, added subsection (3).

Effective Dates.

Section 7 of S.L. 2019, ch. 160 provided that the act should take effect on and after January 1, 2020.

Decisions Under Prior Law

Legislative Intent.

The manifest intent of the legislature in former similar law requiring a notary public to execute a certificate of acknowledgment is to provide protection against the recording of false instruments; the sine qua non of this statutory requirement is the involvement of the notary, a public officer in a position of public trust. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Signing Blank Certificate.

Taking of Acknowledgment.

A notary betrays the public trust when he signs a certificate of acknowledgment with knowledge that the blanks will be filled in later or when he signs a completed certificate of acknowledgment but without requiring the personal appearance of the acknowledgers. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980). Taking of Acknowledgment.

In taking acknowledgments, a notary properly discharges his duty only when the persons acknowledging execution personally appear and the notary has satisfactory evidence, based either on his personal knowledge or on the oath or affirmation of a credible witness, that the acknowledgers are who they say they are and did what they say they did. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Prior Laws.

Former§ 51-105 was repealed. See Prior Laws,§ 51-101.

Duty of Officer.

Identification of Person Acknowledging Instrument.

Officer taking acknowledgment is not required to see person sign the instrument, nor to witness the instrument, but is required to ascertain whether or not the party acknowledges the instrument as his or her obligation or contract, and as having been executed by him or her. First Nat’l Bank v. Glenn, 10 Idaho 224, 77 P. 623 (1904). Identification of Person Acknowledging Instrument.

When an officer taking an acknowledgment does not himself know that the person who appears before him is actually the same person whose name is subscribed to the instrument, such officer is authorized, by statute, to accept either the oath or affirmation of a credible witness. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

In taking acknowledgments, a notary properly discharges his duty only when the persons acknowledging execution personally appear and the notary has satisfactory evidence, based either on his personal knowledge or on the oath or affirmation of a credible witness, that the acknowledgers are who they say they are and did what they say they did. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Not Part of Execution.

An acknowledgment does not form a part of the execution of an instrument. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Personal Appearance Required.

Person acknowledging execution of instrument must be personally present before officer; an acknowledgment over telephone is insufficient. Myers v. Eby, 33 Idaho 266, 193 P. 77 (1920).

Where neither husband nor wife, who had executed a purported oil and gas lease, contemplating the leasing of community property for a term of years, personally appeared before a notary public, the notary could not take their acknowledgment of the lease by accepting or acting upon an affidavit of a third party, stating that the third party personally knew the husband and wife, and was present and saw them execute the lease. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

An officer authorized to take acknowledgments cannot, in the absence of the person who signed the instrument, accept the affidavit of a witness to the signature and, upon such affidavit alone, take the acknowledgment. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Question for Court.

Where defendants in quiet title suit attached a copy of a purported oil and gas lease, executed by plaintiffs, covering land in question, to their answer and annexed the affidavit of a third party respecting execution and acknowledgment of lease, plaintiffs’ general demurrer to the answer admitted facts shown by the affidavit and submitted to trial court the question as to whether there was a valid acknowledgment of purported lease. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Substantial Compliance.

A substantial compliance with the statutory form of acknowledgment will suffice, and technicalities will be disregarded. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936).

Where an acknowledgment of a mortgage before a Utah notary public was made on a printed form prepared for use in Idaho, from which the word “Idaho” was stricken out and the word “Utah” substituted in two places, a clerical error in failing to strike the word “Idaho” from the recitation that the notary was such in and for the state of “Idaho” does not vitiate the certificate of acknowledgment. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936). Acknowledgment of a mortgagor that he signed and sealed the mortgage as his free and voluntary act and deed for the uses and purposes therein mentioned is a sufficient compliance with the statutory requirement of acknowledgment of the execution of a mortgage. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936).

A certificate of acknowledgment complete and regular on its face raises a presumption in favor of the truth of every fact recited therein, which the uncorroborated testimony of the party acknowledging the instrument is insufficient to overcome, and the additional affidavit of the notary that he could not recall any of the circumstances surrounding the execution and acknowledgment of an instrument, although it had sometimes been his practice to take an acknowledgment in the absence of the signing party, was insufficient to impeach the validity of the acknowledgment. Credit Bureau v. Sleight, 92 Idaho 210, 440 P.2d 143 (1968).

Strict compliance with the statutory form is not required; substantial compliance with the statutory requirements is sufficient. Thus, where the certificate did not contain the words “known or identified to me (or proved to me on the oath of ___), to be the person whose name is subscribed to the within instrument,” but where the record disclosed that the notary did in fact know that the persons who executed the certificate of acknowledgment were the same persons who executed the written instrument, the acknowledgment substantially complied with the statutory requirements and forms. Benjamin Franklin Sav. & Loan Ass’n v. New Concept Realty & Dev., Inc., 107 Idaho 711, 692 P.2d 355 (1984).

“Acknowledgment”

“Acknowledgment” — Subsection (a) provides that when taking an acknowledgment, a notarial officer certifies that: (1) the individual who is appearing before the officer and acknowledging the record has the identity claimed, and (2) the signature on the record is the signature of the individual appearing before the officer. The notarial officer must identify the individual either through personal knowledge of the individual or from satisfactory evidence of the identity of the individual (see Section 7). The acknowledging individual must also declare, as required in Section 2(1), that the individual in signing the record for the purpose stated in the record.

It is common practice for the individual to sign the record in the presence of the notarial officer. However, actually signing the record in the presence of the officer is not required as long as the individual acknowledges to the officer, when the individual appears before the officer, that the signature already on the record is that of the individual.

“Verification on oath or affirmation”

“Verification on oath or affirmation” — Subsection (b) provides that when taking a verification on oath or affirmation, a notarial officer certifies that: (1) the individual who is appearing before the officer and making the verification has the identity claimed, and (2) that the signature on the record is the signature of the individual appearing before the officer. The verifying individual must also declare, as required in Section 2(14), that the statements in the record are true. The notarial officer must identify the individual either through personal knowledge of the individual or from satisfactory evidence of the identity of the individual (see Section 7). A verification may be referred to as an affidavit or a jurat in some jurisdictions.

“Witnessing or attesting a signature”

“Witnessing or attesting a signature” — Subsection (c) provides that when witnessing or attesting a signature, a notarial officer certifies that: (1) the individual who is appearing before the officer and signing the record has the identity claimed, and (2) that the signature on the record is the signature of the individual appearing before the officer. The notarial officer must identify the individual either through personal knowledge of the individual or from satisfactory evidence of the identity of the individual (see Section 7). Witnessing or attesting a signature differs from taking an acknowledgment in that the record contains no declaration that it is signed for the purposes stated in the record and differs from a verification on oath or affirmation in that the individual is not verifying a statement in the record as being true. It is merely a witnessing of the signature of an identified individual.

“Certifies or attests a copy”

“Certifies or attests a copy” — Subsection (d) provides that when certifying or attesting a copy of a record or item, a notarial officer certifies that: (1) the officer has compared the copy with the original record or item, and (2) has determined that the copy is a full, true, and accurate transcription or reproduction of the original record or item. This subsection directs the notarial officer to compare a record or item with a copy of the record or item. Therefore, the record or item must be presented to the notarial officer along with the copy so that the officer is able to make the comparison.

Certifying or attesting of a copy is usually done if it is necessary to produce a copy of a record when the original is in an archive or other collection of records and the archived record cannot be removed. In many cases, however, the custodian of the official archive or collection may also be empowered to issue an officially certified copy. When a copy officially certified by the custodian of the archive is available, it is official evidence of the state of the public archive or collection, and it may be better evidence of the original record than a copy certified by a notarial officer.

“Make or note a protest of a negotiable instrument”

“Make or note a protest of a negotiable instrument” — Subsection (e) provides that a notarial officer may make or note a protest of a negotiable instrument under UCC§ 3-505(b). A protest is an official certificate of dishonor of a negotiable instrument. UCC§ 3-505(b) confers the authority to make or take a protest on “a United States consul or vice consul, or a notary public or other person authorized to administer oaths by the law of the place where dishonor occurs.” In the United States a protest of a negotiable instrument may not be needed as evidence of dishonor (see UCC§ 3-505(a); see also UCC§ 3-503). A protest may be necessary, however, on international drafts governed by law of a foreign state (see UCC § 3- 505, Official Comment). This subsection is designed to insure that there is no doubt as to the authority or a notary public to make or note a protest of a negotiable instrument when appropriate under the Uniform Commercial Code.

Prior Laws.

Former§ 51-106 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-107 was repealed. See Prior Laws,§ 51-101.

Identification by Witness.

When an officer taking an acknowledgment does not himself know that the person who appears before him is actually the same person whose name is subscribed to the instrument, such officer is authorized, by statute, to accept either the oath or affirmation of a credible witness. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Personal Appearance Required.

An officer authorized to take acknowledgments cannot, in the absence of identical person who signed the instrument, accept the affidavit of a witness to the signature, and, upon such affidavit alone, take the acknowledgment. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939). COMMENT TO OFFICIAL TEXT

Section 5, above, requires a notarial officer to determine, either from personal knowledge or satisfactory evidence, that the individual for whom the officer will perform a notarial act has the identity claimed. Section 7 specifies the means by which the notarial officer is to determine that identity. Subsection 7(a) describes when a notarial officer has personal knowledge of an individual’s identity. Subsection 7(b) describes when a notarial officer has satisfactory evidence of an individual’s identity.

Subsection (a) states that the notarial officer has personal knowledge of the identity of an individual only if the officer personally knows the individual through prior dealings. The prior dealings may be business dealings or personal dealings. Business dealings might simply be the performance of prior notarial acts for the individual. They may also arise because the notarial officer engaged in prior business transactions with the individual. Personal dealings may exist because the notarial officer is a friend or colleague of the individual. The dealings may also be mixed in nature such as where the notarial officer and individual work in the same office, school, or building. Regardless of whether the prior dealings are business or personal, they must be sufficient to provide the notarial officer with information that is adequate to identify the individual without the need to view any identification credentials or require any other means of identification.

Subsection (b) describes two methods by which a notarial officer may obtain satisfactory evidence of the identity of the individual even though the officer has no prior dealings with that individual. One method of identification is based on an identification credential issued to the individual (subsection (b)(1)). The other method of identification is based on an oath or affirmation of a credible witness as to the identity of the individual (subsection (b)(2)).

Subsection (b)(1)(A) allows a notarial officer to identify an individual by means of a passport, driver’s license, or government issued nondriver identification card. The passport may the issued by the United States or by a foreign state. A United States passport includes the traditional passport book and the more recent passport card as well as any other form of passport the United States may issue. A driver’s license may be issued by a state government, the federal government, a government of a foreign state as defined in Section 14(a), or a tribal, pueblo, or similar authority. A government issued nondriver identification card is a card issued by many states to an individual, which may be used as a means of identification instead of a driver’s license. It may be issued to an individual who is not qualified to obtain a driver’s license or it may be issued in lieu of a driver’s license to an individual who is qualified to obtain a driver’s license.

Although the notarial officer might usually expect the identification credential to be currently in force, this provision recognizes that even though an expired credential would not be effective for its primary purpose (e.g. as a license permitting the individual to drive an automobile), it may used for a period of up to [three years] after its expiration as a means for identifying an individual. As long as it provides the necessary information for identifying the individual, its identification function is satisfied. This subsection does, however, put a specific outside limit of [three years] beyond the expiration of the credential for its use for identification purposes. Subsection (b)(1)(B) recognizes that some individuals may not have a passport, driver’s license, or even a government issued nondriver identification card that is currently valid or not expired by more than [three years]. This subsection allows the notarial officer to base the officer’s identification of the individual on another form of government issued identification as long as that form of identification contains the individual’s signature or a photograph of the individual as a means by which the individual can be associated with the credential. This form of credential may include, for example, a military identification. However, this subsection also makes it clear that this alternative form of identification must be satisfactory to the notarial officer. If the officer is not satisfied with the identification that the credential provides, the officer may refuse to accept it as sufficient identification.

Subsection (b)(2) recognizes that an individual may require the performance of a notarial act even though that individual is not known to a notarial officer and does not have one of the identification credentials listed in subsection (b)(1), or at least the individual does not have the identification credential currently available. This provision allows a notarial officer to identify an individual through an oath or affirmation of a credible witness personally appearing before the officer. The credible witness must either be (1) personally known to the officer, or (2) identified to the officer by means of the witness’ passport, driver’s license, or government issued nondriver identification as long as the credential has not expired more than [three years] before the performance of the notarial act. If the identity of an individual is verified by a properly identified credible witness, it is established by satisfactory evidence.

The meaning of the term “personally known” in subsection (b)(2) is the same as in subsection (a); the meanings of the terms “passport,” “driver’s license,” and “government issued nondriver identification” in subsection (b)(2) are the same as in subsection (b)(1)(A). Subsection (b)(2) does not allow for the identification of the credible witness by means of an alternative form of identification as is provided in subsection (b)(1)(B) for the identification of the individual for whom the notarial act is performed. Subsection (b)(2) also does not allow the identity of a witness to be based on an oath or affirmation of yet another witness; such a process could lead to a spiraling “witness to the witness.”

Subsection (c) recognizes that, even if a specified identification credential is presented, a notarial officer may, in some cases, be uncertain as to the identity of the individual. For example, the identification credential may be defaced or have defects that make legibility difficult, or there may be changes in the physical appearance of the individual that may not be reflected in the image on the identification credential. If the notarial officer is uncertain as to the identity of the individual (whether the individual for whom the notarial act is performed or a credible witness for that individual), the officer may require the individual to provide additional information or identification in order to assure the officer as to the identity of the individual.

Identification of an individual based on an identification credential requires some flexibility. For example, it is not uncommon that an individual’s name as used in a record may be a full name, including a full middle name; however, the name of the individual as provided on the identification credential may only use a middle initial or none at all. The inconsistency may be vice versa instead. The notarial officer should recognize these common inconsistencies when performing the identification of an individual. However, if a notarial officer is ultimately uncertain about the identity of the individual, the notarial officer should refuse to perform the notarial act (see Section 8.)

Prior Laws.

Former§ 51-108 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-109 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-110 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-111 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-112 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-113 was repealed. See Prior Laws,§ 51-101.

Prior Laws.

Former§ 51-114 was repealed. See Prior Laws,§ 51-101.

Compiler’s Notes.

For more information on the Hague Convention on October 5, 1961, see https://www.hcch.net/en/instruments/conventions/full-text /?cid=41 .

APOSTILLE (Convention de La Haye du 5 octobre 1961)

1. Country: ...............................
2. has been signed by ............................... 3.      acting in the capacity of ...............................

This public document

4.      bears the seal/stamp of ...............................

Certified

5.      at ...............      6.  the ...............................

7.      by ...............................

8.      No ...............................

9.      Seal/stamp:      10. Signature:

...............................

Subsection (f) provides an alternative means by which (1) the fact that the signature of the notarial officer on the certificate is genuine, and (2) the fact that the officer held an office with the designated title may be assured. Under it, an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas may provide that assurance by means of a consular authentication. A consular authentication conclusively establishes that (1) the signature of the foreign notarial officer is valid, and (2) the officer holds the indicated office. The consular authentication must be attached to the record with respect to which the notarial act is performed. When combined with the conclusive presumption established under subsection (c) as to the authority of a notarial officer with a designated title to perform a notarial act, all three steps in the proof of the authority of a notarial officer to perform a notarial act, as listed in the Comment to Section 10, are met.

Effective Dates.

Section 7 of S.L. 2019, ch. 160 provided that the act should take effect on and after January 1, 2020.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-115 was repealed. See Prior Laws,§ 51-101.

Construction of Certificate.

In aid of a certificate of acknowledgment, reference may be had to the whole instrument or to any part thereof, and certificates of acknowledgment will be upheld when the substance is found, and conveyances of proof of them will not be defeated by technical or unsubstantial objections. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936).

Technical deficiencies in the certificate of acknowledgment will not render the certificate defective, if the alleged deficiency can be cured by reference to the instrument itself. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Cure of Deficiencies.

Technical deficiencies in the certificate of acknowledgment may be cured by reference to the instrument itself. Anderson Land Co. v. Small Bus. Admin., 718 F.2d 968 (9th Cir. 1983).

Impeachment of Certificate.

Notary may not testify to any fact tending to impeach a certificate of acknowledgment made by him. First Nat’l Bank v. Glenn, 10 Idaho 224, 77 P. 623 (1904).

Personal Appearance.

A notary betrays the public trust when he signs a certificate of acknowledgment with knowledge that the blanks will be filled in later or when he signs a completed certificate of acknowledgment, but without requiring the personal appearance of the acknowledgers; however, whether the certificate blanks are empty or full is not the significant fact, since the key to the statutory safeguard is the integrity of the notary in the proper discharge of notarial duties by requiring the signatories to personally appear before him and acknowledge that they did in fact execute the document. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Question for Court.

Where defendants in quiet title suit attached a copy of a purported oil and gas lease, executed by plaintiffs, covering land in question, to their answer and annexed the affidavit of a third party respecting execution and acknowledgment of lease, plaintiffs’ general demurrer to the answer admitted facts shown by the affidavit and submitted to trial court the question as to whether there was a valid acknowledgment of purported lease. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Substantial Compliance.

Idaho has generally adhered to the view that substantial compliance with the statutory requirements regarding acknowledgments will suffice. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

COMMENT TO OFFICIAL TEXT

Subsection (a) provides that a notarial act must be evidenced by a certificate of notarial act. It sets out the requirements of that certificate:

Subsection (a)(1) — The certificate must be executed contemporaneously with the performance of a notarial act. The performance of a notarial act may take some period of time to accomplish, especially in large transactions with long closings. The fact that the certificate is not executed by the notarial officer immediately after the individual signs and acknowledges a deed would not necessarily demonstrate a lack of contemporaneous execution. However, a certificate that is not executed until some days after an individual signs and acknowledges a deed and the transaction is closed would not be a contemporaneous execution.

Subsection (a)(2) — The certificate must be signed and dated by the notarial officer. If the notarial officer is a notary public, the signature must be signed in the same manner as the signature that is on file with the commissioning officer or agency. For example, if a signature on file with the commissioning officer or agency contains the notary public’s middle initial, the signature on the certificate must also contain the initial.

Subsection (a)(3) — The certificate must identify the jurisdiction in which the notarial act is performed. This is normally done by identifying the state and county in which the notarial act is performed (see Section 16, Short Forms). (Some states allow, on a reciprocity basis, notaries public of this state to perform notarial acts in a neighboring state or in counties in a neighboring state. Nothing in this Act changes or limits that reciprocity).

Subsection (a)(4) — The certificate must identify the title of office of the notarial officer. For example, the office may be notary public or clerk of court. The notarial officer may also be an individual in a military service or performing duties under the authority of a military service, in which case the individual’s rank or position should be identified.

Subsection (a)(5) — If the officer is a notary public, the certificate must contain the expiration date of the notary public’s commission, if any. In some states, the expiration date will be part of a notary public’s official stamp (see Section 17(1)) and the use of the official stamp will satisfy the requirements of this subsection. However, if a notary public’s official stamp does not contain the expiration date because it is not required under Section 17(1) or if a notary publicis not required use an official stamp under subsection (b), the expiration date of the notary public’s commission must be separately inserted.

Subsection (b) identifies those circumstances in which the certificate of notarial act must contain the official stamp of the notarial officer.

If the notarial act is performed with respect to a tangible medium and is performed by a notary public, subsection (b) requires that the notary public’s official stamp be affixed to or embossed on the certificate of notarial act.

If the notarial act is performed with respect to a tangible medium and is performed by a notarial officer other than a notary public, subsection (b) states that an official stamp may be attached to or embossed on the certificate of notarial act. However, although permitted, it is not required by this act. Whether a notarial officer other than a notary public is required to use an official stamp and what the contents of that stamp may be will depend on other law of this state. That law may not require the use of a stamp or it may require the use of a stamp but may specify other contents. Regardless of whether an official stamp is attached to or embossed on the certificate, the certificate nevertheless must, at a minimum, contain the information specified in subsections (a)(2), (3) and (4). If the notarial act is performed with respect to an electronic record by a notarial officer, whether a notary public or otherwise, subsection (b) states that the officer’s official stamp may be attached to, or associated with, the electronic certificate of notarial act. However, although permitted, this subsection does not require that a notarial officer’s official stamp be attached to or logically associated with an electronic certificate. Regardless of whether an official stamp is attached to or logically associated with an electronic certificate, the electronic certificate nevertheless must, at a minimum, contain the information specified in subsections (a)(2), (3) and (4). These are the same provisions found in URPERA § 3(c), UETA § 11, and ESign § 101(g) regarding the performance of notarial acts with respect to electronic records.

Subsection (c) provides that if the certificate of notarial act meets the requirements of subsections (a) and (b), it may be in (1) the appropriate short form set out in Section 16, (2) any other form permitted by the law of this state, (3) any other form permitted by the law of the place where the notarial act is performed if other than this state, or (4) any form that sets forth the actions of the notarial officer if those actions meet the requirements of Sections 5, 6, and 7 or law other than this act, whether state or federal. Thus, acknowledgments and other notarial acts may be in the short forms provided in Section 16 or may be in more prolix and elaborate traditional forms provided they contain the required information.

Subsection (d) emphasizes the obligation of the notarial officer to comply with the requirements of, and to make the determinations required by, Sections 5, 6, and 7. By executing the certificate, the notarial officer certifies that the officer has done so.

Subsection (e) provides that the notarial officer may not sign the certificate until the notarial act has been fully performed (compare N.C. Gen. Stat. § 10B-35 (2009)).

Subsection (f) seeks to assure the unified integrity of the record and the related certificate of notarial act. With respect to a notarial act evidenced on a tangible record, this subsection requires that the certificate must be a part of, or securely attached to, the record. If the certificate is not a part of the record itself, the means of attaching the certificate to the record are not specified. However, stapling is a common means.

Affixing an electronic certificate to, or associating it with, an electronic record requires sophisticated technology. There are multiple technologies by which the affixing or associating may be accomplished and those technologies will undoubtedly change over time as technologies improve and change. Accordingly, subsection (f) does not adopt any particular technology or limit the affixing or associating to technologies that are currently available. Rather, it provides that the certificate must be affixed to, or logically associated with, the electronic record in accordance with standards as may be approved by the commissioning officer or agency. The standards are left to the determination of the commissioning officer or agency under Section 27 and will depend on the available technology and the degree of security provided by available technology. In the absence of standards adopted by the commissioning officer or agency, the notary public may proceed with performing notarial acts with respect to electronic records as long as the notary public employs tamper evident technologies as required by Section 20.

Prior Laws.

Former§ 51-116 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2019 amendment, by ch. 160, added subsection (6).

Effective Dates.

Section 7 of S.L. 2019, ch. 160 provided that the act should take effect on and after January 1, 2020.

Acknowledgment Regular on Its Face.

A certificate of acknowledgment, complete and regular on its face, raises a presumption in favor of the truth of every fact recited therein, which the uncorroborated testimony of the party acknowledging the instrument is insufficient to overcome, and the additional affidavit of the notary that he could not recall any of the circumstances surrounding the execution and acknowledgment of an instrument, although it had sometimes been his practice to take an acknowledgment in the absence of the signing party, was insufficient to impeach the validity of the acknowledgment. Credit Bureau v. Sleight, 92 Idaho 210, 440 P.2d 143 (1968).

Applicability.

Because a memorandum of sale was executed by a personal representative, former§ 55-713 [now see§ 51-116A], not this section, provides the form required for the certificate of acknowledgment. A memorandum of sale that is not properly acknowledged cannot be recorded. Salladay v. Bowen, 161 Idaho 563, 388 P.3d 577 (2017).

Cure of Deficiencies.

Technical deficiencies in the certificate of acknowledgment may be cured by reference to the instrument itself. Anderson Land Co. v. Small Bus. Admin., 718 F.2d 968 (9th Cir. 1983).

Personal Appearance.

A notary betrays the public trust when he signs a certificate of acknowledgment with knowledge that the blanks will be filled in later or when he signs a completed certificate of acknowledgment but without requiring the personal appearance of the acknowledgers; however, whether the certificate blanks are empty or full is not the significant fact, since the key to the statutory safeguard is the integrity of the notary in the proper discharge of notarial duties by requiring the signatories to personally appear before him and acknowledge that they did in fact execute the document. Farm Bureau Fin. Co. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).

Statement of Authority.

Nothing in the statutes requires the acknowledgment to include a specific statement of corporate authority. Anderson Land Co. v. Small Bus. Admin., 718 F.2d 968 (9th Cir. 1983).

Substantial Compliance.

Where corporate form acknowledgment established notary’s personal knowledge of signer’s office and, when read together with quitclaim deed, made it apparent that corporation executed the deed, such acknowledgment substantially complied with statutory requirements. Anderson Land Co. v. Small Bus. Admin., 718 F.2d 968 (9th Cir. 1983).

Since this section requires substantial compliance, but not strict compliance with the prescribed form, a certificate that stated that the grantors personally appeared before the notary and the notary’s affidavit established that he knew the signers to be the persons who executed the deed, the acknowledgment was valid and was sufficient to impart constructive notice to the trustee. Benjamin Franklin Sav. & Loan Ass’n v. New Concept Realty & Dev., Inc., 753 F.2d 804 (9th Cir. 1985).

Strict compliance with the statutory form set forth in this section is not required; substantial compliance with the statutory requirements is sufficient. Thus, where the certificate did not contain the words “known or identified to me (or proved to me on the oath of ___), to be the person whose name is subscribed to the within instrument,” but where the record disclosed that the notary did in fact know that the persons who executed the certificate of acknowledgment were the same persons who executed the written instrument, the acknowledgment substantially complied with the statutory requirements and forms. Benjamin Franklin Sav. & Loan Ass’n v. New Concept Realty & Dev., Inc., 107 Idaho 711, 692 P.2d 355 (1984). COMMENT TO OFFICIAL TEXT

This section provides statutory short form certificates of various notarial acts. These forms are sufficient to document a notarial act in this state. See Section 15(c)(1). Other forms may also qualify as stated in Section 15(c)(2), (3), and (4).

These certificates may be used for notarial acts performed on tangible records as well as those performed with respect to electronic records. They are available for notarial acts performed by notaries public as well as notarial officers who are not notaries public. Under Section 15(b), an official stamp is required on the certificate if the notarial act is performed on a tangible record by a notary public. Under Section 15(b), if the notarial act is performed on a tangible record by a notarial officer other that a notary public or is performed by any notarial officer on an electronic record, an official stamp is optional, but the information or acts specified in Section 15(a)(2), (3) and (4) must be supplied. The short forms provided in this section call for the insertion of that information or the performance of those acts.

The calls in each of the forms for state and county information refer to the state and county where the notarial act is performed.

Applicability.

Because a memorandum of sale was executed by a personal representative, this section provides the form required for the certificate of acknowledgment. A memorandum of sale that is not properly acknowledged cannot be recorded. Salladay v. Bowen, 161 Idaho 563, 388 P.3d 577 (2017).

Deficiency.

Where a notary’s endorsement of a memorandum of sale was not a certificate used for acknowledgments, but was the endorsement used for oaths and affirmations, the deficiency could not be cured by reference to the instrument. Salladay v. Bowen, 161 Idaho 563, 388 P.3d 577 (2017).

Prior Laws.

Former§ 51-117 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2018 amendment, by ch. 77, inserted present subsection (2) and redesignated the subsequent subsections accordingly; and substituted “subsections (1) through (3)” for “subsections (1) and (2)” in subsection (5).

Compiler’s Notes.

Effective October 1, 2018, S.L. 2017, ch. 192, § 5 repealed a version of this section, enacted by S.L. 2017, ch. 192, § 4, and S.L. 2017, ch. 192, § 6 enacted a new version.

Effective Dates.

Section 16 of S.L. 2017, ch. 192 provided that the enactment of this section by section 6 of S.L. 2017, ch. 192 is effective October 1, 2018.

Section 6 of S.L. 2018, ch. 77 provided that the amendment of this section should take effect on and after October 1, 2018.

Clerical Errors.

Where a notary public of the state of Utah took an acknowledgment for a mortgage on land in Idaho and used a printed form for such acknowledgment, the fact that the printed word “Idaho” was crossed out in two places but was not crossed out in the third place did not render the certificate invalid, because such an omission was merely a clerical error. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936). COMMENT TO OFFICIAL TEXT

This section sets forth two requirements for a notary public’s official stamp, whether the stamp is a physical image attached to, or embossed on, a tangible certificate of notarial act or an electronic image attached to, or logically associated with, an electronic certificate of notarial act.

Subsection (1) provides that the official stamp must state the notary public’s name. Since Subsection 15(a)(2) requires that a notary public sign the notary’s name as it appears on file with the commissioning officer or agency, the name of the notary on the official stamp should also conform with the name on file with the commissioning officer of agency. The official stamp must state the jurisdiction in which the notary public is commissioned. An optional provision states that the official stamp must set forth the date on which the notary public’s commission expires. Finally, the official stamp must include any other information that is required by the commissioning officer or agency.

Subsection (2) [now (4)] requires that the official stamp be capable of being copied together with the record to or with which it is attached or logically associated. Thus, for example, an official stamp that is affixed with a rubber stamping device and ink must provide a clear image in an ink that is capable of being copied. An official stamp that is affixed by embossing must do so in such a way that the information in the embossment is capable of being copied. An official stamp that is attached to, or logically associated with, an electronic record must be capable of being copied by the same technology by which the electronic record is copied.

Prior Laws.

Former§ 51-118 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2018 amendment, by ch. 77, in the first sentence in subsection (1), inserted “for tangible records” and “of the notary’s official stamp that meets the requirements of section 51-117, Idaho Code, and”; and inserted present subsection (2) and redesignated the subsequent subsections accordingly.

Effective Dates.

Section 16 of S.L. 2017, ch. 192 provided that the enactment of this section by section 7 of S.L. 2017, ch. 192 is effective October 1, 2018.

Section 6 of S.L. 2018, ch. 77 provided that the amendment of this section should take effect on and after October 1, 2018.

COMMENT TO OFFICIAL TEXT

In order to protect and maintain the integrity of notarial acts, it is important that a notary public’s stamping device be kept secure and out of the hands of other individuals who might use it fraudulently or erroneously. Accordingly, subsection (a) provides that a notary public is responsible for maintaining the security of notary’s stamping device. Similarly, it provides that a notary public may not allow another individual to use the device.

In order to assure the integrity of the notarial system, the optional (bracketed) sentences of subsection (a) provide that the notary public may not continue to possess the official stamp once the notary is no longer serving as a notary public. The first optional sentence provides that upon the resignation of the notary public’s commission, the revocation or expiration of the notary’s commission, or the expiration of the date set forth in the stamping device, the notary must disable the device by destroying, defacing, damaging, erasing or securing it in a manner that renders it unusable. Similarly, the second optional sentence provides that upon the death or incompetency of a notary public, if the notary public’s personal representative is knowingly in possession of the stamping device, the representative must render the stamping device unusable by destroying, defacing, damaging, erasing or securing it. (Compare N.C. Gen. Stat.§ 10B-36(a) (2009).)

Subsection (b) [now (4)] recognizes that if the official stamp is lost or stolen, the possibility of fraudulent activity or misuse is also raised. Thus, a notary public is required to notify the commissioning officer or agency as soon as the notary discovers that the stamp is lost or stolen. The commissioning officer or agency may be able to take other steps to provide notification that will further protect the public (compare Ariz. Rev. Stat. §§41-323 (2010); N.C. Gen. Stat. § 10B-36(c) (2009).)

Prior Laws.

Former§ 51-119 was repealed. See Prior Laws,§ 51-101.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-120 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2019 amendment, by ch. 160, added “— Acceptance of tangible copy of electronic record” at the end of the section heading; and added subsection (3).

Effective Dates.

Section 7 of S.L. 2019, ch. 160 provided that the act should take effect on and after January 1, 2020.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-121 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2018 amendment, by ch. 77, added “— Reappointment” in the section heading; in subsection (1), substituted “make application” for “apply” in the first sentence and inserted the present second sentence; deleted former paragraph (2)(e), which read: “Not be disqualified to receive a commission under section 51-123, Idaho Code”; deleted former subsection (3), which read: “Before issuance of a commission as a notary public, an applicant for the commission shall execute an oath of office and submit it to the secretary of state” and redesignated the subsequent subsections accordingly; in present subsection (3), substituted “At the time of submitting the application” for “Before issuance of a commission as a notary public”; in present subsection (4), inserted “review and may” and added “or may deny the application pursuant to section 51-123, Idaho Code” at the end; and added subsection (6).

Compiler’s Notes.

The bracketed insertion in paragraph (3)(a)(ii) was added by the compiler to correct the name of the referenced agency. See http://adm.idaho.gov/risk/ .

Effective Dates.

Section 6 of S.L. 2018, ch. 77 provided that the amendment of this section should take effect on and after July 1, 2018.

Decisions Under Prior Law

Timeliness of Claim.

Chapter 7 trustee’s adversary proceeding alleging that a notary public and the notary’s employer were liable under this section for damages the notary caused when she notarized the forged signature of a debtor on a deed of trust was not time-barred, even though the trustee filed his adversary proceeding on March 25, 2009, more than three years after the notary notarized the debtor’s signature. Subsection (4) of§ 5-219 gave the debtor two years from the date he discovered the notary’s misconduct to file a lawsuit. The debtor discovered the notary’s conduct in May 2006, and declared bankruptcy on March 28, 2008. 11 U.S.C.S. § 108 extended the period the trustee had to file his adversary proceeding until March 28, 2010. Gugino v. Alliance Title & Escrow Corp. (In re Ganier), 2010 Bankr. LEXIS 1444 (Bankr. D. Idaho May 3, 2010).

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-122 was repealed. See Prior Laws,§ 51-101.

Effective Dates.

Section 16 of S.L. 2017, ch. 192 provided that the enactment of this section by section 3 of S.L. 2017, ch. 192 is effective July 1, 2019.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 51-123 was repealed. See Prior Laws,§ 51-101.

Amendments.

The 2018 amendment, by ch. 77, deleted “refuse to renew” preceding “revoke” in the section heading and the introductory paragraph in subsection (1); substituted “revocation, suspension of” for “refusal to renew, revocation, or suspension of” in paragraph (1)(h), and updated a reference in paragraph (1)(i); deleted “refuses to renew” preceding “revokes” in subsection (2); and deleted “refuse to renew” preceding “suspend” in subsection (3).

Effective Dates.

Section 6 of S.L. 2018, ch. 77 provided that the amendment of this section should take effect on and after July 1, 2018

Official Comment

Subsection (a) lists the grounds upon which the commissioning officer or agency may deny, refuse to renew [now deleted], revoke, suspend, or impose a condition a commission. The general grounds listed include a lack of honesty, integrity, competency, or reliability on the part of the applicant or current notary public. The grounds are similar to those provided in many states (compare Ariz. Rev. Stat.§ 41-330(A) (2010); N.C. Gen. Stat. § 10B-5(d) (2010)).

Subsections (a)(1) to (6) and (8) enumerate specific grounds upon which the commissioning officer or agency may deny, refuse to renew [now deleted], suspend, revoke or impose a condition a commission. Subsection (a)(7) allows the commissioning officer or agency to refuse to renew, suspend, revoke, or impose a condition a commission because the notary public has violated rules adopted by the commissioning officer or agency regarding notaries public.

Although the grounds for disciplinary action stated in this subsection provide the commissioning officer or agency with substantial authority to invoke discipline on the applicant or notary public in order to protect the public, paragraph 10 allows legislatures to add other specific grounds.

Because notaries public deal with financial, personal, and confidential matters for their clients, trustworthiness and honesty are essential qualities of a person holding a commission. Many of the disciplinary grounds provided in this subsection deal with breaches of those qualities (compare Cal. Govt. Code § 8201.1(a) (2010)). Subsections (a)(2), (3) and (4) specify several situations in which lack of those qualities, i.e. fraud, dishonesty and deceitfulness, may arise and upon which the commissioning officer or agency may deny, refuse to renew, revoke, suspend, or impose a condition on a commission. Subsection (a)(6) allows disciplinary action if dishonesty or deceitfulness is displayed by the use of false or misleading advertising. If optional Section 21(d) is adopted, subsection (a)(8) allows disciplinary action if a notary public refuses to obtain, has been unable to obtain, or has been denied, an assurance in the form of a surety bond or its functional equivalent.

In determining whether to deny, refuse to renew [now deleted], suspend, revoke, or impose a condition on a notary public’s commission based on an applicant’s or commission holder’s prior felony under subsection (c), the commissioning officer or agency should take into consideration the relevance of the felony to the performance of the notary public’s duties as well as the length of time that has transpired since the performance of the felonious act. The commissioning officer or agency has discretion when making the determination and should weigh all the facts and circumstances before making a decision. Subsection (b) states that an applicant or notary public whose commission has been denied, revoked, or suspended, or upon whose commission a condition has been imposed, or who has been refused a renewal of a commission is entitled to a timely notice and a hearing. Such a notice and hearing are likely required by the state’s administrative procedure act but are restated here for clarity.

Subsection (c) provides that the fact that a commissioning officer or agency has the authority to deny, refuse to renew [now deleted], suspend, revoke or impose a condition on a commission does not prevent additional relief provided by law. Either the commissioning officer or agency or a person aggrieved by the action of a notary public may seek appropriate relief, whether the relief is civil or criminal.

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Secretary of state,§ 67-901 et seq.

Amendments.

The 2018 amendment, by ch. 77, deleted “(4)” following “51-121” in paragraph (1)(f).

Compiler’s Notes.

For more information on the national association of secretaries of state, referred to in paragraph (2)(a), see http://www.nass.org/ .

Effective Dates.

Section 6 of S.L. 2018, ch. 77 provided that the amendment of this section should take effect on and after July 1, 2018.

Compiler’s Notes.

The phrase “the effective date of this act,” appearing three times in this section, refers to the effective date of S.L. 2017, chapter 192, which was generally effective July 1, 2017.

Compiler’s Notes.

The phrase “the effective date of this act” refers to the effective date of S.L. 2017, chapter 192, which was generally effective July 1, 2017.

Compiler’s Notes.

These sections, which comprised S.L. 1864, p. 522,§§ 1-4; 1875, p. 674, § 5; R.S.,§§ 300-306; R.C. & C.L.,§§ 243-249; C.S.,§§ 219-225; I.C.A.,§§ 50-201 — 50-207, were repealed by S.L. 1949, ch. 3, § 1.