Last week we posed the real-life situation of the Notary who was asked to acknowledge the signature on an agreement to purchase a 10-year-old Haitian boy as an indentured servant.
We asked our Notary community to weigh in on the question: What would you do if you were in this situation?
Your Answers
Notary Diane Elliott wrote that she would notarize the document, “then call child protective services. What she is doing is against the law.”
Elaine Wright Harris, the NNA’s 2009 Notary of the Year, had a different approach. “I would tell the signer, ‘Based on the oath I took as a Notary Public to support the Constitution of the United States… which states that involuntary servitude shall not exist, I cannot notarize this document.’ I would note the reason why I refused in my journal.”
“I would not notarize the document because I believe the document was for an illegal act,” wrote Lorraine Ohrenich. “I would also try to get down the signer's ID information in order to report it to the local police.”
“I can't imagine that purchasing a 10-year-old Haitian boy as an indentured servant for 10 years is legal but I would want to have some legal support in the event that my refusal spawned legal action,” wrote Mark D Stelter.
Mary Fahey said she would notarize the document, but then check with her attorney to see if she could report the situation to federal immigration authorities.
Notary Elaine McKenna was very emphatic. “Sometimes what is legal is not moral. Placing a minor in indentured servitude is immoral. If the requester doesn't like my refusal then she can take it up with the Secretary of State.”
NNA Recommendations
As reprehensible as the agreement appears, it raises important questions about a Notary’s duty as an impartial witness and public official.
The answers to those questions depend on the requirements of the state where you are commissioned. And those requirements run the gamut.
In this scenario, the Notary was presented a hand-written document and culled from it a number of details, including the age and home country of the boy, and the fact that the agreement was to last for 10 years.
Generally speaking, a Notary should only peruse the document to make sure there are no blank spaces and determine the title or description for their journal entry. Beyond that, it is considered an invasion of the signer’s privacy to read the contents.
In fact, Massachusetts, New Mexico, Rhode Island, New Mexico and Wyoming are among the states that have enacted a law or published a best practice — based on the NNA-published Model Notary Act — that includes the following provision:
“A Notary has neither the duty nor the authority to investigate, ascertain, or attest the lawfulness, propriety, accuracy, or truthfulness of a document or transaction involving a notarial act.”
Other states take the opposite view. Mississippi, for example, last year adopted an administrative rule that requires Notaries to “examine” the document to determine if the notarization is being requested for an unlawful or improper purpose.
If a Mississippi Notary has “good reason to believe” that the notarization is intended for an unlawful or improper purpose, they must refuse the request.
Some states are much more restrictive when it comes to refusing requests. California law says Notaries have a duty to perform authorized notarial acts when requested.
According to the Arizona Notary Public Reference Manual, “A Notary Public cannot refuse a notarization of a document if a reasonable request is made.”
It goes on to list the reasons why an Arizona Notary can say “No.” They all involve issues related to the notarization, such as the lack of acceptable ID or proper guidance about the type of notarization being requested. None of them involve the legality or morality of the document contents.
In states that offer little or no guidance, the Notary Public Code of Professional Responsibility provides sound direction.
The Code stipulates that a Notary should refuse to perform any notarial act involving a document or transaction that the Notary knows, or reasonably suspects, is illegal, dishonest, deceptive, false or improper (IV-E-2).
So if you are ever presented with an unusual request such as this, make sure you’re familiar with the requirements and guidelines of your state. You also can contact the NNA Hotline for help.
Michael Lewis is Managing Editor of member publications for the National Notary Association.
Related Articles:
WWYD: 2 Women, Same Name — Your Answers
WWYD: Answers To The Case Of The Anonymous Egg Donor
WWYD: Answers To The Case Of The Transgender Signer
Additional Resources:
NNA Webinar: Strange, Unusual and Bizarre Requests
State Law Summaries