SB-0664, As Passed Senate, June 6, 2018

SUBSTITUTE FOR

SENATE BILL NO. 664

     A bill to amend 2003 PA 238, entitled

"Michigan notary public act,"

by amending sections 3, 5, 7, 15, and 27 (MCL 55.263, 55.265,

55.267, 55.275, and 55.287), section 5 as amended by 2006 PA 426,

section 15 as amended by 2006 PA 510, and section 27 as amended by

2006 PA 155, and by adding sections 26, 26a, and 54.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 3. As used in this act:

     (a) "Acknowledgment" means the confirmation by a person a

declaration by an individual in the presence of a notary public

that he or she is placing or has placed his or her signature on has

signed a record for the purposes stated in the record and, if the

record is signed in a representative capacity, that he or she is

placing or has placed his or her signature on signed the record

with the proper authority and in the capacity signed it as the act

of the person represented and identified in the record.

     (b) "Cancellation" means the nullification of a notary public

commission due to an error or defect or because the notary public

is no longer entitled to the commission.

     (c) "Department" means the department of state.

     (d) "Electronic" means that term as defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849.

relating to technology that has electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

     (e) "Electronic signature in global and national commerce act"

means Public Law 106-229, 114 Stat. 464.

     (e) "Electronic notarization system" means a set or system of

applications, programs, hardware, software, or technologies

designed to enable a notary public to perform electronic

notarizations.

     (f) "Electronic signature" means an electronic sound, symbol,

or process attached to or logically associated with a record and

executed or adopted by an individual with the intent to sign the

record.

(g) (f) "Information" means that term as defined in the

electronic signature in global and national commerce act.includes

data, text, images, sounds, codes, computer programs, software, and

databases.

(h) (g) "In a representative capacity" means any of the

following:

     (i) For and on behalf of a corporation, limited liability

company, partnership, trust, association, or other legal entity as

an authorized officer, manager, agent, partner, trustee, or other

representative of the entity.

     (ii) As a public officer, personal representative, guardian,

or other representative in the capacity recited in the

document.record.

     (iii) As an attorney in fact for a principal.

     (iv) In any other capacity as an authorized representative of

another person.

(i) (h) "In the presence of" means in compliance with section

101(g) of title I of the electronic signature signatures in global

and national commerce act, 15 USC 7001.

     Sec. 5. As used in this act:

     (a) "Jurat" means a certification by a notary public that a

signer, whose identity is personally known to the notary public or

proven on the basis of satisfactory evidence, has made in the

presence of the notary public a voluntary signature and taken an

oath or affirmation vouching for the truthfulness of the signed

record.

     (b) "Lineal ancestor" means an individual who is in the direct

line of ascent including, but not limited to, a parent or

grandparent.

     (c) "Lineal descendant" means an individual who is in the

direct line of descent including, but not limited to, a child or

grandchild.

     (d) "Notarial act" means any of the following:

     (i) An act, whether performed with respect to a tangible or

electronic record, that a notary public commissioned in this state

is authorized to perform including, but not limited to, the taking

of an acknowledgment, the administration of administering an oath

or affirmation, the taking of a verification upon oath or

affirmation, and the or witnessing or attesting a signature

performed in compliance with this act. and the uniform recognition

of acknowledgments act, 1969 PA 57, MCL 565.261 to 565.270.

     (ii) An act described in subparagraph (i) that is performed in

another jurisdiction and meets the requirements of section 25a.

     (e) "Notify" means to communicate or send a message by a

recognized mail, delivery service, or electronic means.

     (f) "Official misconduct" means either or both 1 or more of

the following:

     (i) The exercise of power or the performance of a duty that is

unauthorized, unlawful, abusive, negligent, reckless, or injurious.

     (ii) The charging of a fee that exceeds the maximum amount

authorized by law.

     (g) "Person" means every natural person, corporation,

partnership, trust, association, or other legal entity and its

legal successors.an individual or a corporation, business trust,

statutory trust, estate, partnership, trust, limited liability

company, association, joint venture, public corporation, government

or governmental subdivision, agency, or instrumentality, or any

other legal or commercial entity.

     (h) "Record" means that term as defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to

450.849.information that is inscribed on a tangible medium or that

is stored in an electronic or other medium and is retrievable in

perceivable form.

     (i) "Revocation" means the termination of a notary public's

commission to perform notarial acts.

     Sec. 7. As used in this act:

     (a) "Secretary" means the secretary of state acting directly

or through his or her duly authorized deputies, assistants, and

employees.or his or her designee.

     (b) "Signature" means a person's written or printed name or

electronic signature as that term is defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849,

or the person's mark attached to or logically associated with a

record including, but not limited to, a contract and executed or

adopted by the person with the intent to sign the record.an

individual's written or printed name, electronic signature, or

mark, attached to or logically associated with a contract or other

record and executed, adopted, or made by the individual with the

intent to sign the record.

     (c) "State" means a state of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, the United States

Virgin Islands, or any territory or insular possession subject to

the jurisdiction of the United States.

(d) (c) "Suspension" means the temporary withdrawal of the

notary's notary public's commission to perform notarial acts during

the period of the suspension.

(e) (d) "Verification upon oath or affirmation" means the

declaration by a declaration, made by an individual on oath or

affirmation before a notary public, that a statement in a record is

true.

     Sec. 15. (1) A person An individual shall apply to the

secretary for appointment as a notary public in a format as

prescribed by the secretary. An application for appointment as a

notary public shall contain the must include the handwritten

signature of the applicant . In addition to other information as

may be required by the secretary, the application shall include and

all of the following information:

     (a) The applicant's name, residence address, business address,

date of birth, and residence and business telephone numbers, and

electronic mail address.

     (b) The applicant's driver license or state personal

identification card number.

     (c) A validated copy of the filing of the bond, if applicable,

and oath certificate received from the county clerk.

     (d) If applicable, a statement showing whether the applicant

has previously applied for an appointment as a notary public in

this or any other state, the result of the application, and whether

the applicant has ever been the holder of a notary public

appointment that was revoked, suspended, or canceled in this or any

other state.

     (e) A statement describing the date and circumstances of any

felony or misdemeanor conviction of the applicant during the

preceding 10 years.

     (f) A declaration that the applicant is a citizen of the

United States or, if not a citizen of the United States, proof of

the applicant's legal presence in this country.

     (g) An affirmation by the applicant that the application is

correct, that the applicant has read this act, and that the

applicant will perform his or her notarial acts faithfully.

     (h) Any other information required by the secretary.

     (2) Each application shall be accompanied by an application

processing fee of $10.00. One dollar The secretary shall deposit

$1.00 of each fee collected under this subsection shall be

deposited into the notary education and training fund established

in section 17 on a schedule determined by the secretary.

     (3) Upon receipt of When he or she receives an application

that is accompanied by the prescribed processing fee, the secretary

may inquire as to the qualifications of the applicant and shall

determine whether the applicant meets the qualifications prescribed

in for appointment as a notary public under this act. To assist in

deciding whether the applicant is qualified, the secretary may use

the law enforcement information network as provided in the C.J.I.S.

policy council act, 1974 PA 163, MCL 28.211 to 28.215, to check the

criminal background of the applicant.

     (4) After approval of the an application for appointment as a

notary public, the secretary shall mail directly to the applicant

the certificate of appointment as a notary public. Each certificate

of appointment shall identify the person individual as a notary

public of this state and shall specify the term and county of the

person's his or her commission.

Sec. 26. (1) A notary public may select 1 or more tamper-

evident electronic notarization systems to perform notarial acts

electronically. A person may not require a notary public to perform

a notarial act electronically with an electronic notarization

system that the notary public has not selected.

     (2) Before a notary public performs the notary public's

initial notarial act electronically, the notary public shall notify

the secretary that the notary public will be performing notarial

acts electronically and identify the electronic notarization system

the notary public intends to use for electronic notarizations. If

the secretary and the department of technology, management, and

budget have approved the use of 1 or more electronic notarization

systems under section 26a, the notary public must select the system

he or she intends to use from the approved electronic notarization

systems. The secretary may disallow the use of an electronic

notarization system if the electronic notarization system does not

satisfy the criteria described in section 26a.

     Sec. 26a. (1) Within 180 days after the effective date of this

section, the secretary and the department of technology,

management, and budget shall review and approve at least 1

electronic notarization system for the performance of electronic

notarizations in this state. The secretary and the department of

technology, management, and budget may approve multiple electronic

notarization systems, and may grant approval of additional

electronic notarization systems on an ongoing basis. The secretary

and the department of technology, management, and budget shall

review the criteria for approval of electronic notarization

systems, and whether currently approved electronic notarization

systems remain sufficient for the electronic performance of

notarial acts, at least every 4 years.

     (2) Subject to subsection (3), in considering whether to

approve an electronic notarization system for use in this state

under subsection (1), the secretary and the department of

technology, management, and budget shall consider, at a minimum,

the following:

     (a) The need to ensure that any change to or tampering with an

electronic record containing the information required under this

act is evident.

     (b) The need to ensure integrity in the creation, transmittal,

storage, or authentication of electronic notarizations, records, or

signatures.

     (c) The need to prevent fraud or mistake in the performance of

electronic notarizations.

     (d) The ability to adequately investigate and authenticate a

notarial act performed electronically with that electronic

notarization system.

     (e) The most recent standards regarding electronic

notarizations or records promulgated by national bodies, including,

but not limited to, the National Association of Secretaries of

State.

     (f) The standards, practices, and customs of other

jurisdictions that allow electronic notarial acts.

     (3) If an electronic notarization system for the performance

of electronic notarizations is approved or certified by a

government-sponsored enterprise, as that term is defined in 2 USC

622(8), the secretary and the department of technology, management,

and budget shall approve the system for use in this state if

verifiable proof of that approval or certification is provided to

the secretary and department, unless the use of the electronic

notarization system is affirmatively disallowed by the secretary.

     Sec. 27. (1) A notary public shall place his or her signature

on every record upon which he or she performs a notarial act. The

notary public shall sign his or her name exactly as his or her name

appears on his or her application for commission as a notary

public.

     (2) On each record that a notary public performs a notarial

act and immediately near the notary public's signature, as is

practical, the notary public shall print, type, stamp, or otherwise

imprint mechanically or electronically sufficiently clear and

legible to be read by the secretary and in a manner capable of

photographic reproduction all of the following in this format or in

a similar format that conveys all of the same information:

     (a) The name of the notary public exactly as it appears on his

or her application for commission as a notary public.

     (b) The statement: "Notary public, State of Michigan, County

of __________.".

     (c) The statement: "My commission expires __________.".

     (d) If performing a notarial act in a county other than the

county of commission, the statement: "Acting in the County of

__________.".

     (e) The date the notarial act was performed.

     (f) If applicable, that the notarial act was performed

electronically.

     (3) A notary public may use a stamp, seal, or electronic

process that contains all of the information required by subsection

(2). However, the stamp, seal, or electronic process shall not be

used in a manner that renders anything illegible on the record

being notarized. An embosser alone or any other method that cannot

be reproduced shall not be used.

     (4) The illegibility of the statements required in subsection

(2) does not affect the validity of the transaction or record that

was notarized.

     Sec. 54. This act modifies, limits, and supersedes the

electronic signatures in global and national commerce act, 15 USC

7001 to 7031, but does not modify, limit, or supersede section

101(c) of that act, 15 USC 7001(c), or authorize electronic

delivery of any of the notices described in section 103(b) of that

act, 15 USC 7003(b).

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 99th Legislature are

enacted into law:

     (a) Senate Bill No. 996.

     (b) Senate Bill No. 997.

     (c) Senate Bill No. 998.