I read in the news this morning that Minnesota will enact new notary law on January 1 allowing notaries public to notarize documents electronically, for people who aren’t right there in the notaries’ physical presence.
What? Notaries can do that?
In Minnesota, starting next Tuesday, yes. Governor Mark Dayton signed the “Revised Uniform Law on Notarial Acts” on May 20. (You can read the original bill here, and enjoy the fact that Minnesota bills come with summaries, telling us in plain English what each section of the bill does—LRC, take note!) Minnesota Statute 358.645 lays out the definitions and rules for remote online notarial acts:
- Remote online notary publics (shall we call them RONPs?) must already be regular notaries in Minnesota and apply to the Secretary of State for authorization to notarize online.
- RONPs must be in Minnesota when they apply their electronic seal, but they can notarize documents for people anywhere in the U.S.
- RONPs may notarize documents for folks overseas, but the documents need to relate to a proceeding or property in the U.S. or “a transaction substantially connected to the United States.”
- Among other documentation, RONPs must “create an audio and video copy of the performance of the notarial act” and preserve that record for at least ten years.
- To get the notary seal, signers must be personally known to the notary or must present government-issued credentials and answer at least four out of five personally identifying questions, each with at least five answer choices.
- The principals’ signatures and the notaries signatures and seals are all electronic. The software that applies the notary seal must also apply code that will signal whether any changes are made to the document after the notarial act.
Numerous vendors provide the software to make remote online notarization possible: DocVerify, DocuSign, Notarize.com…. Virginia was the first state to authorize remote online notarizing, in 2012. Montana, Texas, and Nevada followed. Minnesota was one of five states to pass legislation this year to join the RONP crowd.
South Dakota almost joined them this year. Representative Tim Johns (R-30/Lead) and Senator Craig Kennedy (D-18/Yankton), two of the sharper legal minds in the Legislative drawer, sponsored 2018 House Bill 1170 last winter. As Rep. Johns explained in House Judiciary, allowing remote online notarization would save a lot of time and legal expense for folks buying or selling property far away. Absent RONP, Rep. Johns said he has to find someone who can show up on clients’ behalf at remote sites and arrange power of attorney.
Governor Daugaard sent advisor A.J. Franken to testify against HB 1170 in House Judiciary, not because of any hazards of online notarizing itself but because of some duplicative drafting and because it would’ve cost the Secretary of State’s office $140,000 to update its software. Rep. Johns said he was already amending the bill to address cost concerns and would save consumers money. Rep. Tona Rozum (R-20/Mitchell) heartily endorsed catching up with the technology other states are adopting, and no one in House Judiciary spoke or voted contrarily.
The bill sailed through the House but then lost momentum in Senate Judiciary, even though Senator Kennedy testified that remote online notarizing would bring South Dakota into the 21st century and allow us to use our own notaries more often instead of relying on notaries in other states. Mega-lobbyists Matt McCaulley and Roger Tellinghuisen rang in with concerns from the Land Title Association and county officials about fraud and drafting; Tellinghuisen offered to help draft better legislation “in the off-season.” HB 1170 survived Senate Judiciary but was tabled (i.e., killed) in the Senate on a unanimous vote.
Alas, the off-season may have brought more delay. With Tellinghuisen in attendance, the South Dakota Electronic Recording Commission (which includes land titlers and registers of deeds) recommended in October that the Legislature hold off on remote online notary legislation until 2020, to “give enough time to research various other states’ laws and the Model Acts that have been developed as well as give the newly elected Secretary of State time.” (What? We elect a new Secretary of State, and innovation has to stop because he’s a slow study?) But keep an eye out: Rep. Johns and Sen. Kennedy will both be back in Pierre, so perhaps they can educate Secretary of State-Elect Barnett faster than local officials expected and get remote online notarization off the ground in South Dakota.