SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 246
56th legislature - STATE OF NEW MEXICO - first session, 2023
AN ACT
RELATING TO NOTARIAL ACTS; AMENDING THE REVISED UNIFORM LAW ON NOTARIAL ACTS; DEFINING "AUTOMATIC NOTARIAL OFFICERS" AND "JUDICIAL OFFICERS"; REDEFINING ROLES OF NOTARIAL OFFICERS AND NOTARIES PUBLIC; AMENDING PERSONAL APPEARANCE REQUIREMENTS; PROHIBITING ACTS OF DISCRIMINATION AS GROUNDS TO REFUSE TO PERFORM NOTARIAL ACTS; PROVIDING FOR NOTARIAL ACTS TO BE PERFORMED BY NOTARIAL OFFICERS AND OTHERS AUTHORIZED BY STATE LAW; RECOGNIZING NOTARIAL ACTS PERFORMED BY AN INDIAN NATION, TRIBE OR PUEBLO; REQUIRING AN OFFICIAL STAMP IN SPECIFIED CIRCUMSTANCES; CLARIFYING OFFICIAL STAMP REQUIREMENTS; PROVIDING REQUIREMENTS FOR A CERTIFICATE OF NOTARIAL ACTS; AMENDING CONTINUING LEGAL EDUCATION CREDIT REQUIREMENTS; MAKING TECHNICAL AND CONFORMING CHANGES; PROVIDING GROUNDS TO DENY, REFUSE TO RENEW, REVOKE, SUSPEND OR CONDITION THE COMMISSION OF A NOTARIAL OFFICER.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 14-13-3 NMSA 1978 (being Laws 1882, Chapter 28, Section 1, as amended) is amended to read:
"14-13-3. OATHS--POWER TO ADMINISTER.--The secretary of state [of New Mexico], county clerks, court clerks [of probate courts, clerks of district courts, clerks of magistrate courts if the magistrate court has a seal, and all duly commissioned and acting notaries public] and all notarial officers are hereby authorized and empowered to administer oaths and affirmations [in all cases where magistrates and other officers] within the state [authorized to administer oaths may do so, under existing laws, and with like effect]."
SECTION 2. Section 14-14A-1 NMSA 1978 (being Laws 2021, Chapter 21, Section 1) is amended to read:
"14-14A-1. SHORT TITLE.--[Sections 1 through 32 of this act] Chapter 14, Article 14A NMSA 1978 may be cited as the "Revised Uniform Law on Notarial Acts"."
SECTION 3. Section 14-14A-2 NMSA 1978 (being Laws 2021, Chapter 21, Section 2) is amended to read:
"14-14A-2. DEFINITIONS.--In addition to the general definitions provided in Section 12-2A-3 NMSA 1978 of the Uniform Statute and Rule Construction Act, as used in the Revised Uniform Law on Notarial Acts:
A. "acknowledgment" means a declaration by an individual before a notarial officer that:
(1) the individual has signed a record for the purpose stated in the record; and
(2) if the record is signed in a representative capacity, [that] the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record;
B. "automatic notarial officer" means any of the following who has registered an official stamp with the secretary of state:
(1) a judicial officer;
(2) the secretary of state or a full-time staff member of the secretary of state's office while performing a notarial act within the scope of the secretary of state's or staff member's duties;
(3) a county clerk or deputy county clerk while performing a notarial act within the scope of the county clerk's or deputy county clerk's duties; and
(4) an individual who is a member of the state bar of New Mexico and licensed to practice law;
[B.] C. "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
[C.] D. "electronic signature" means an electronic symbol, sound or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record;
[D.] E. "foreign state" means a government other than the United States, a state or a federally recognized Indian tribe;
[E.] F. "in a representative capacity" means acting as:
(1) an authorized officer, agent, partner, trustee or other representative for a person other than an individual;
(2) a public officer, personal representative, guardian or other representative, in the capacity stated in a record;
(3) an agent or attorney-in-fact for a principal; or
(4) an authorized representative of another in any other capacity;
G. "judicial officer" means:
(1) a judge of a state court of this state;
(2) a special commissioner or hearing officer appointed pursuant to supreme court rule and employed by a state court;
(3) a special master appointed pursuant to supreme court rule or state statute; and
(4) a court clerk or deputy court clerk of a state court of this state;
H. "licensed to practice law" means a person who is a member of the state bar of New Mexico and, based on such membership, is authorized to practice law before the courts of this state;
[F.] I. "notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy and noting a protest of a negotiable instrument, but does not apply to any act that would otherwise be a notarial act if:
(1) the act is performed by a judicial officer within the scope of the judicial officer's duties; and
(2) the record is filed in the court of the judicial officer;
[G.] J. "notarial officer" means [a notary public or other individual authorized to perform a notarial act]: (1) an automatic notarial officer; and
(2) a notary public;
[H.] K. "notary public" means an individual commissioned [to perform a notarial act] by the secretary of state to be a notary public and authorized by such commission to perform notarial acts pursuant to the Revised Uniform Law on Notarial Acts;
L. "official notary seal" means the great seal of the state or New Mexico, unless the secretary of state has adopted a seal specific for use by notarial officers; provided that as applied to automatic notarial officers, "official notary seal" includes as an option:
(1) for judicial officers, the seal of the court, if the supreme court has approved a seal for such court and the seal has been filed with the secretary of state;
(2) for the secretary of state or a full-time staff member of the secretary of state's office, the seal of the secretary of state, if the secretary of state has approved a seal and the seal has been filed with the secretary of state;
(3) for county clerks or deputy county clerks, the seal of the county, if the board of county commissioners has approved a seal for the county and the seal has been filed with the secretary of state; and
(4) for a person who is licensed to practice law and who is not performing a notarial act pursuant to Paragraphs (1) through (3) of this subsection, a seal approved by the state bar of New Mexico for such purpose and the seal has been filed with the secretary of state;
[I.] M. "official stamp" means a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record and includes an official notary seal;
[J.] N. "person" also includes a statutory trust, public corporation, government or governmental subdivision, agency or instrumentality;
[K.] O. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
[L.] P. "sign" or "subscribe", when used with present intent to authenticate or adopt a record, means to:
(1) execute or adopt a tangible symbol; or
(2) attach to or logically associate with the record an electronic symbol, sound or process;
[M.] Q. "signature" means a tangible symbol or an electronic signature that evidences the signing of a record;
[N.] R. "stamping device" means:
(1) a physical device capable of affixing to or embossing on a tangible record an official stamp; or
(2) an electronic device or process capable of attaching to or logically associating with an electronic record an official stamp; and
[O.] S. "verification on oath or affirmation" means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true."
SECTION 4. Section 14-14A-3 NMSA 1978 (being Laws 2021, Chapter 21, Section 3) is amended to read:
"14-14A-3. AUTHORITY TO PERFORM NOTARIAL ACT.--
A. A [notary public or] notarial officer shall perform all notarial acts pursuant to the Revised Uniform Law on Notarial Acts or by law of this state other than the Revised Uniform Law on Notarial Acts.
B. A notarial officer shall not perform a notarial act with respect to a record to which the officer or the officer's spouse or domestic partner is a party or in which either of them has a direct beneficial interest. A notarial act performed in violation of this subsection is voidable.
C. A notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record."
SECTION 5. Section 14-14A-5 NMSA 1978 (being Laws 2021, Chapter 21, Section 5) is amended to read:
"14-14A-5. PERSONAL APPEARANCE REQUIRED--EXCEPTION AUTHORIZED FOR REMOTE NOTARIZATIONS.--
A. If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.
B. A remotely located individual may comply with this section or with any other requirement of the laws of this state that state that a person appear before a notarial officer at the time of a notarial act by using communication technology to appear before a [notary public or] notarial officer.
C. A [notary public or] notarial officer located in this state may perform a notarial act using communication technology for a remotely located individual if:
(1) the [notary public] notarial officer:
(a) has personal knowledge of the identity of the individual pursuant to Subsection A of Section [6 of the Revised Uniform Law on Notarial Acts] 14-14A-6 NMSA 1978;
(b) has taken the required class and has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public pursuant to Subsection B of Section [6 of the Revised Uniform Law on Notarial Acts] 14-14A-6 NMSA 1978 or this section; or
(c) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
(2) the [notary public] notarial officer is able to reasonably confirm that a r