AnalysisThe South Dakota Secretary of State has adopted rules to implement the enactment of Senate Bill 211, effective July 1, 2024, which authorized remote online notarization. Previously, South Dakota law only allowed remote notarizations to be performed on paper documents, but with Senate Bill 211, Notaries in South Dakota now may perform remote notarial acts on electronic records.
As the NNA has observed in several states, South Dakota blurs the line between remote online notarization (RON) and in-person electronic notarization (IPEN). Technically, South Dakota Codified Laws 18-1-11.4 authorizes a notarial officer, including a Notary, to perform “notarial acts with respect to electronic records” once they notify the Secretary of State they will be doing so. Most states that have enacted this very same or a similar provision understand this to refer to a Notary performing IPENs. But on the new commission application and new Notary Public Change Form, the Secretary confusingly refers to this as “E-Notary” services. The statutes only contain rules for performing a “notarial act executed on an electronic record by a person not in the physical presence of the notarial officer.” However, since a “notarial act with respect to an electronic record” may be performed in the physical presence of a Notary (IPEN) as well, unless and until told otherwise, the NNA will be interpreting the new law as authorizing Notaries to perform IPENs as well as RONs. We also understand that a Notary who desires to perform either or both “E-Notary” services must notify the Secretary of State they will be doing so, but if the Notary is only performing a remote notarial act on a paper document (see SDCL 18-1-11.1), no notification is required.
The amended rules adopt new versions of the Notary Public application and change of information form. Both forms now allow an applicant for a Notary Public Commission or a commissioned Notary Public to inform the Secretary of State that the Notary will be performing notarial acts with respect to electronic records and identify or make changes to the vendors of tamper-evident technology the Notary intends to use. Additionally, according to the Notice, the rules modify the oath on the application form to “better conform to other oaths currently in use.”
Read the Notice of Proposed Rules.