Colorado - New Identification Law - New Record Law

Why was Senate Bill 111 enacted? SB 111 was enacted as part of a “sunset review” of the Colorado Notary Public Act. The Act was set to expire on July 1, 2009. Therefore, the General Assembly needed to take action to reenact the Act or put another law in its place. As part of the sunset review process, the Secretary of State proposed amendments to the Notary Public Act.

When do the provisions of Senate Bill 111 take effect? The new law takes effect July 1, 2009. The new law allowing the Secretary of State to publish rules for Notary education courses does not have a firm timeline.

How does the new law affect Notary commission applicants? SB 111 requires the Secretary of State to verify the lawful presence in the United States of any Notary commission applicant through the verification procedures contained in CRS 24-76.5-103(4).

What does the new law say the Secretary of State can do if I commit a prohibited act or official misconduct? The Secretary of State may deny the application for an appointment or reappointment or revoke the commission of a Notary for any of the grounds listed in CRS 12-55-107. In addition, this provision now permits the Secretary of State's designee to send a letter of admonition or suspend the commission of a Notary for any of the grounds listed in CRS 12-55-107.

What does the new law say about keeping a journal? SB 111 repeals the prior requirement that a Notary keep a journal of every acknowledgment affecting the title to real property taken by the Notary and requires a Notary to keep a journal for every notarial act. However, the law still permits employers to keep the original or a copy of the notarized document in lieu of a journal entry if the document contains the information otherwise required to be entered in the journal and the document is retained by the employer in the ordinary course of business.

What does the new law say about Notary training? SB 111 permits the Secretary of State to promulgate rules to require Notaries to complete a training program.

Are there any other changes in the law that I should know about? SB 111 repeals the notarial duty enacted in 2005 allowing a Notary to transmit encrypted, authenticated photographs of individuals for use by motor vehicle offices, credit card companies and other entities requiring an authenticated photograph of an individual, and also repeals the accompanying directive requiring the Secretary of State to publish rules for this procedure to be approved by the General Assembly.

Verifying Lawful Presence in U.S.

How will the Secretary of State verify the lawful presence in the U.S. of a Notary commission applicant? CRS 24-76.5-103(4) requires an applicant to produce one of the following types of identification: a valid Colorado driver's license or a Colorado identification card; a United States military card or a military dependent's identification card; a United States Coast Guard Merchant Mariner card; or Native American tribal document. In addition, the applicant must sign an affidavit stating that the applicant is a United States citizen or a legal permanent resident or that he or she is otherwise lawfully present in the United States pursuant to federal law.

Rules for Notary Training

Does SB 111 create a mandatory education requirement for Colorado Notaries? Not yet. The new law permits the Secretary of State to publish rules to require Notaries to complete a training course.

Will the Secretary of State publish rules requiring a mandatory educational course and when will the rules be published? We don't know for sure that the Secretary will publish rules requiring mandatory education. The law permits, but does not require, the Secretary to publish rules. No estimated date for any rulemaking has been set, but notices of rulemaking, proposed rules, and new and amended rules, are published monthly in the Colorado Register.

Notary Journal

I'm a Notary for my employer and I never notarize outside of work. Do I have to keep a journal? If your employer retains the original or a copy of the notarized document and that original or copy contains all the information otherwise required by law to be recorded in the journal, then no, you are not required to keep a journal if you only notarize at work. However, if the document does not contain the information required to be included in the journal, you must keep a journal.

Can I keep a journal for notarizations I perform at work even though my employer keeps a copy of the notarized document? Yes. The Notary Public Act retains a prior law that says an employee-Notary may maintain a journal of work-related notarizations even when the employer has retained the original or a copy of the notarized document.

Can my employer prevent me from keeping a journal for notarizations I perform at work? No. The Notary Public Act retains a prior law that says an employer may not prohibit an employee from keeping a journal if he or she wants to.

Would it benefit my employer if I kept a journal when he keeps a copy of the notarized document? Yes. An employer should require employee-Notaries to keep a journal because it is easier to have records of all notarizations in one place than to store and search for the notarized documents themselves later.

I'm a Notary for my employer and I occasionally notarize outside of work. Do I have to keep a journal? You will have to keep a journal for notarizations you perform outside of work.

I'm a Notary in business for myself. Can I keep a copy of the notarized document or must I keep a journal? If your business does not meet the requirements of the law for keeping the original or a copy of the notarized document or the notarized document does not contain all the information required by law to be entered in the journal, then you must keep a journal. Even if you keep a copy of the notarized document in lieu of making a journal entry, it may be far easier and convenient for you to keep a journal instead, and the journal entry provides important independent evidence that you performed the notarial act on a given date.

I'm a Notary Signing Agent. Do I have to keep a journal? Yes. Since a Notary Signing Agent typically cannot keep copies of notarized loan papers for privacy reasons, you must keep a journal. The new law requires that a journal entry be recorded for each notarial act, not just documents requiring an acknowledgment that affect title to real property, as the old law required. This means signature, name, occupancy and financial status affidavits that appear in a loan package must be notarized, as must the mortgage itself.

House Bill 1326

Why was House Bill 1326 enacted? HB 1326 was enacted to correct instances of fraud in relation to circulator's affidavits during the 2008 general election. Some of the abuses involved the notarizations of the affidavits.

What does House Bill 1326 prohibit? HB 1326 prohibits a Notary from notarizing a circulator's affidavit unless the circulator (signer) is in the physical presence of the Notary, dates the affidavit and completes all personal information in the affidavit and presents an identification document to establish the circulator's residence address in Colorado, which is then described by the Notary on the affidavit itself.

What is the circulator's affidavit? A circulator's affidavit is a form that is attached or annexed to the signatures gathered in support of a citizen-initiated petition, wherein the circulator attests or swear to various facts. Since the affidavit is in essence an oath, the circulator's signature must be witnessed and the facts in the affidavit sworn to or affirmed before a Notary or other officer authorized to administer oaths in Colorado.

Under the New Law, what forms of identification must a circulator present to a Notary? HB 1326 specifies that a circulator must present a form of identification as prescribed by CRS 1-1-104(19.5) that clearly shows the address of the circulator in the state of Colorado.

Do the forms of identification specified under CRS 1-1-104(19.5) meet the requirements for satisfactory evidence under the Colorado Notary Public Act for a notarial act? Yes and no. A Colorado driver's license and non-driver's identification card and U.S. passport satisfy both CRS 1-1-104(19.5) for the circulator's affidavit and CRS 12-55-110 for a notarial act. However, CRS 1-1-104(19.5) permits a circulator to present a current utility bill and several other documents as identification for the circulator's affidavit. These documents do not meet the standards for an acceptable identification document for a notarial act under CRS 12-55-110. Furthermore, an identification document may satisfy the rules under CRS 12-55-110 for a notarial act but not the rules for the circulator's affidavit under CRS 1-1-104(19.5).

What can happen to a circulator's affidavit that is notarized improperly? HB 1326 states that improperly notarized affidavits that do not comply with the new law are invalid and must be rejected by the Secretary of State.

What can happen to a Notary who willfully violates the new notarization rules for a circulator's affidavit? The Notary can be fined, imprisoned or both imprisoned and fined, and any qualified elector can commence a civil action to recover reasonable attorney fees and costs from any Notary found by the district court to have committed fraud with regard to petition circulation, invalid signatures or petition sections.

House Bill 1287

Why was House Bill 1287 enacted? House Bill 1287 implements changes in the Colorado Probate Code. One new provision allows a written will to be signed and either acknowledged before a Notary or other officer authorized to take acknowledgments, or attested by two witnesses, as the law previously provides.

When is House Bill 1287 effective? House Bill 1287 is effective July 1, 2010.

What does House Bill 1287 mean for Notaries? Effective July 1, 2010, Notaries may be asked to notarize signatures on wills.

Colorado Notaries have been permitted to notarize signatures on affidavits to make a will “self-proving” in the past. Does the new law change this? No. Notaries still may notarize the signature of the testator and attesting witnesses on these affidavits. What has changed is that to execute a written will, a testator can opt to have his or her signature notarized on the will without witnesses.