November 28, 2017, Introduced by Senators MACGREGOR, HANSEN, JONES and BOOHER and referred to the Committee on Finance.
A bill to amend 2003 PA 238, entitled
"Michigan notary public act,"
by amending sections 3, 5, 7, and 15 (MCL 55.263, 55.265, 55.267,
and 55.275), section 5 as amended by 2006 PA 426 and section 15 as
amended by 2006 PA 510, 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 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.
(f) "Information" means that term as defined in the electronic
signature
signatures in global and national commerce act, 15 USC
7001 to 7031.
(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.
(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 in the direct line
of ascent including, but not limited to, a parent or grandparent.
(c) "Lineal descendant" means an individual in the direct line
of descent including, but not limited to, a child or grandchild.
(d)
"Notarial act" means any act 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.
(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 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.a tangible
symbol or an electronic signature that evidences the signing of a
record.
(c) "Suspension" means the temporary withdrawal of the
notary's
notary public's commission to perform notarial acts during
the period of the suspension.
(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 technologies to perform notarial acts electronically. A
person may not require a notary public to perform a notarial act
electronically with a technology 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 technology the notary public
intends to use. If the secretary and the department of technology,
management, and budget have approved the use of 1 or more
technologies under section 26a, the notary public must select 1 of
the approved technologies. The secretary may prohibit the use of a
technology if the technology does not satisfy the criteria
described in section 26a.
Sec. 26a. Before January 1, 2019, the secretary and the
department of technology, management, and budget, shall review and
approve technologies for the electronic performance of notarial
acts in this state. The secretary and the department of technology,
management, and budget may approve multiple technologies, and may
grant approval to additional technologies on an ongoing basis. The
secretary and the department of technology, management, and budget
shall review the criteria for approval of technologies, and whether
currently approved technologies remain sufficient for the
electronic performance of notarial acts, at least every 4 years. In
considering approval of any technology for use in this state, 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 self-evident.
(b) The need to ensure integrity in the creation, transmittal,
storage, or authentication of electronic records or signatures.
(c) The need to prevent fraud or mistake in the performance of
notarial acts with respect to electronic records.
(d) The ability to adequately investigate and authenticate a
notarial act performed electronically with that technology.
(e) The most recent standards regarding electronic 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 notarial acts with respect to electronic
records.
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.