AL Senate Bill 322

Legislation

State: Alabama
Signed: June 14, 2023

Effective: September 01, 2023
Chapter: Act No. 2023-548

Summary
Senate Bill 322 initiates several regulatory changes, including a new mandatory training requirement and an increased surety bond, for Alabama Notaries.

Affects
Amends 36-20-70, 36-20-71, 36-20-72, 36-20-73.1, 36-20-74, and 36-20-75 of the Code of Alabama.

Changes

Notary Commission

Requires each applicant for Notary Public commission to pay a $10 application fee.
Provides that a judge of probate may accept or deny any application for Notary Public commission, as developed by the Alabama Probate Judges Association and the Alabama Law Institute.
Requires a judge of probate to shall deny an application for Notary Public commission on any of the following grounds: (a) The applicant is not a resident of Alabama. (b) The applicant makes the application to a judge who is not the judge of probate of the county of the applicant's residence. (c) The applicant has been convicted of a felony or crime of moral turpitude. (d) The applicant is currently a debtor in a bankruptcy proceeding. (e) The applicant is under a current order adjudicating him or her incapacitated. (f) The applicant provides false information on the application. (g) The applicant is unable or unwilling to successfully complete the required training program within 30 days after submitting his or her application, but this time frame may be extended by the judge of probate upon good cause shown.
Clarifies that a Notary Public is not an insurer but is under a duty to act honestly, skillfully, and with reasonable diligence.
Prohibits a Notary Public from performing an acknowledgment in any transaction where he or she has a pecuniary interest.
Raises the Notary Public bond from $25,000 to $50,000.
Provides that all existing notaries public functioning on January 1, 2023, shall continue to function pursuant to their existing bond for the remainder of their existing commission.

Notary Training

Provides that before being commissioned, an applicant for a Notary Public commission must successfully complete a training program prepared by the Alabama Probate Judges Association and the Alabama Law Institute that reinforces and updates the applicant's knowledge of all matters relevant to the appointment, authority, duties, and legal and ethical responsibilities of a Notary Public.
Clarifies that an attorney who is commissioned as a Notary Public is not required to complete the training requirement.
Provides that Notary Public who is commissioned as of the effective date of this act is required to complete the training requirement upon applying for the renewal of his or her expired commission.

Standards for Notarial Acts

Provides that the form and content of any notarial act on an instrument to be recorded in the public records, including the court system, must include an oath, acknowledgment, and signature of each party to the document, or his or her mark, and the signature of the Notary Public and their seal of office by either ink stamp or embossed impression."
Provides that except as otherwise provided in COA 36-20-73.1, any signature acknowledged before a Notary Public must be executed within Alabama and must be executed in the physical presence of the Notary Public at the time of the acknowledgment, only after the Notary Public has positively identified the prospective signatory via personal knowledge of the affiant or the examination of photo identification issued by a governmental entity or agency.
Authorizes a Notary Public to charge a reasonable fee, raising the fee from $5 to $10, for each notarial act performed.
Prohibits a fee from being charged by a state, county, or municipal employee for a notarial act performed during, and as a part of, his or her public service, unless otherwise provided by law.

Unlawful Acts and Penalties

Provides that the commissioning judge of probate, or his or her successor in office, may issue a warning to a Notary or restrict, suspend, or revoke a notarial commission for a violation of this article and on any ground for which an application for a commission may be denied under Article 4 (COA 36-20-70 through 36-20-75).
Clarifies that a period of restriction, suspension, or revocation issued to a Notary by a probate judge does not extend the expiration date of a commission.
Provides that except as otherwise permitted by law, an individual who commits any of the following acts is guilty of a Class C misdemeanor: (a) Holding one's self out to the public as a Notary without being commissioned. (b) Performing a notarial act with an expired, suspended, or restricted commission. (c) Performing a notarial act before taking an oath of office. (d) Charging a fee for a notarial act in excess of the maximum fee allowed by this article. (e) Taking an acknowledgment or administering an oath or affirmation without the principal appearing in person before the Notary or following the procedures for remote notarization set out in this article. (f) Taking an acknowledgment or administering an oath or affirmation without personal knowledge or satisfactory evidence of the identity of the principal. (g) Taking a verification or proof without personal knowledge or satisfactory evidence of the identity of the subscribing witness.
Provides that a Notary is guilty of a Class D felony if he or she does any of the following with the intent to commit fraud or to intentionally assist in the commission of a fraudulent act: (a) Takes an acknowledgment, or a verification or proof, or administers an oath or affirmation he or she knows or reasonably believes to be false. (b) Takes an acknowledgment or administers an oath or affirmation without the principal appearing in person before the Notary, or without following the procedures for remote notarization set out in this article. (c) Takes a verification or proof without the subscribing witness appearing in person before the Notary, or without following the procedures for remote notarization set out in this article. (d) Performs notarial acts in this state with the knowledge that he or she is not properly commissioned under Chapter 20 of Title 36 of the Code of Alabama.
Provides that any party to a transaction requiring a notarial certificate for verification and any attorney licensed in Alabama who is involved in such a transaction in any capacity, may execute an affidavit and file it with either the Secretary of State or the judge of probate who issued the commission to the Notary Public, setting forth the actions which the affiant alleges are violations.
Provides that upon receipt of an affidavit alleging violations by a Notary, the Secretary of State or judge of probate shall forward the affidavit to the Alabama State Law Enforcement Agency, which shall initiate and carry out, on their own or in coordination with local law enforcement agencies, investigations of violations and refer founded investigations to the appropriate district attorney for prosecution.
Clarifies that resignation or expiration of a notarial commission does not terminate or preclude an investigation into the conduct of a Notary by the Secretary of State, a judge of probate, or a law enforcement agency who may pursue the investigation to a conclusion, whereupon it may be a matter of public record whether or not the finding would have been grounds for disciplinary action.
Authorizes the commissioning judge of probate to order injunctive relief against any individual who violates this chapter including, but not limited to, ordering the surrender and destruction of a Notary commission and a Notary seal.
Provides that any individual who knowingly solicits, coerces, or in any material way influences a Notary to commit official misconduct is guilty as an aider and abettor and is subject to the same level of punishment as the Notary.

Analysis

Senate Bill 322 institutes new regulatory requirements for Notaries Public. It appears from reading the new changes that there have been problems with the performance of Notaries in Alabama. The increased bond, new training requirement, added criminal acts, and increased penalties all point in that direction. Until the enactment of Senate Bill 322, Alabama’s Notary laws had been sparse compared with other states.

The training requirement is welcome news, but the NNA would have preferred a process by which course providers other than the Alabama Probate Judges Association and the Alabama Law Institute could have been approved to offer their courses to Alabama Notary commission applicants.

Two matters in the bill are of benefit to Notaries. First, the maximum fee that a Notary may charge has increased from $5 to $10. Second, an earlier version of the bill would have increased the Notary commission fee from $10 to $100, but that provision was not included in the final version. Thus, Notaries and their employers should be relieved that this tenfold increase in the commissioning fee was not adopted.

Update (August 16, 2023): The Legislative Services Agency determined during the codification process that the amendment to COA 36-20-71 in the enacted bill contained a scrivener’s error. The official code has been updated to provide that existing Notaries functioning on the effective date, September 1, 2023 (rather than January 1, 2023), shall continue to function pursuant to their existing bond for the remainder of their existing commission.

Read Senate Bill 322.