Notary Bulletin

Secretary Of State: New Law Protects Notaries And Employers

Editors Note: Montana Secretary of State Linda McCulloch discusses how a new law in her state bolsters Notary professionalism.


Linda McCulloch was elected Montana Secretary of State in November 2008

By Linda McCulloch

Effective October 1, 2009, all Montana Notaries are required to keep and maintain an official Notary journal recording the details of each notarial act performed While it could be argued that it has always been a common law standard, the reality in Montana, as well as in many other states, is that without the actual statute many Notaries do not keep records of their notarizations.

Because the contemporaneous record of the notarial act can be so important to protect the Notary, the people for whom the notarization is done, and the Notarys employer, we felt that the requirement must be clearly included in our Notary laws. As Peter Van Alstyne, a recognized expert in Notary law, has written, Your Notary journal record constitutes a business record exemption to the hearsay rule under the rules of evidence. Everything recorded therein is automatically deemed factually true. Good recordkeeping is a powerful tool in the Notarys world.

In my testimony before both the Senate and House committees, I noted how the use of a journal provides a guideline to the Notary to assure that the notarization is done correctly; it prevents a Notary from performing a false notarization; and it protects the Notary from unfounded allegations of improper notarizations.

Keeping a good record of notarizations is a vital means of preventing fraud and identity theft. Law enforcement officials have endorsed Notary recordkeeping as important means of protecting the public from becoming victims of unscrupulous white-collar crime. Illegal property transfers using forged deeds are much less likely to occur and more easily prosecuted in states where Notaries are required to keep records. A notarial record is another type of home security system.

The National Notary Association also testified about the benefits of Notary recordkeeping. NNA representatives shared information about the recent Illinois appellate court decision in Vancura v. Katris that may make employers directly responsible for the supervision and training of Notaries in their employ. Statutory recordkeeping requirements give employers additional protection against this liability.

During the hearings on our bill, we heard many, if not all, of the arguments objecting to mandating journals: Its too time-consuming and cumbersome, It conflicts with privacy laws and attorney/client privilege, We only notarize for the people in our own office, and so on. We worked closely with Notaries, members of the legislature, and the Montana Clerks and Recorders Association to address these concerns. When these and other objections were balanced against the benefits that automatically accrue from the practice of keeping notarial records, the legislature agreed that this would be a good law for the people of Montana. Governor Brian Schweitzer agreed and signed the bill on April 18.

There are several other important changes that we will be implementing as a result of SB 299. Starting this fall, Montanans will be even better served by their dedicated and professional Notaries public than ever before. To learn more, please visit our website, www.sos.mt.gov/notary.

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Quiz: The Many Types Of Notarial Acts

Notaries perform many different duties for the public — and it’s easy to lose track of the different acts and what states they’re authorized in. Test your familiarity with common — and uncommon — notarial acts.

(A link to the correct answers is provided at the end of the quiz.)

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