SB 193: SD Still Queasy About Remote Notarization

South Dakota took a tiny step into the 21st century two years ago when it adopted remote online notarization, allowing notaries public to notarize documents for folks who present themselves to the notary electronically rather than in person. Allowing notaries to apply electronic seals to electronic documents the way Minnesota and other modern civilizations do was a step too far from the outhouse for our legislators, but hey, in South Dakota, “Open for Business” is just a slogan, not a truly integrated cultural and technological approach to keeping up with modern business practices.

And evidently, even our small step toward remote notarization makes some people in Pierre skittish. Rookie Senator David Wheeler proposes Senate Bill 193, which responds to all that notary newfangledry with a tightening of the somewhat loosey-goosey rules.

SB 193 primarily clarifies the “personal knowledge” a notary must have to establish the identity of a remote requestor and proceed with notarization. The remote notarization statute adopted in 2019 says the notary must have “personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed.” But the 2019 law doesn’t define “personal knowledge.” SB 193 tightens things up a little bit with this definition:

“Personal knowledge,” a notarial officer has personal knowledge of the identify of an individual appearing before the officer if either:

1. The individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. The notarial officer must have known and had regular interactions with the individual for an extended period of time. A mere acquaintance does not amount to personal knowledge for purposes of this definition; or
2. The notarial officer represents, or is employed by the firm or business that represents, the individual as their attorney, real estate agent, auctioneer, or public accountant, or any combination thereof [2021 SB 193, excerpt from original bill text, filed 2021.02.03]

Under that definition, “dealings sufficient” is codified at least as a formal commercial relationship. Absent money changing hands, the remote notary has to personally know the document-bearer through “regular interactions,” plural, over “an extended period of time.” Tainted billionaires seeking refuge for their ill-gotten gains can’t quite fax Tony Venhuizen out of the blue and say, “Quick! incorporate my trust! My ex-wife is after me!” They have at least officially hire Venhuizen or sign a contract with his firm before they can start shipping their jewels to that storage unit out behind Mark Mickelson’s CAFO.

A petition-minded friend asked if SB 193 would affect the notary-intensive work of initiative and referendum petition drives. (The initiative and referendum process that we know and love is so technical that any little change in legal wording could have an enormous impact on petition operations, so yes, our Legislative radars are hypersensitive.) Slightly tightening the definitions for remote notarization should have little to no effect on petition drives, since ballot question petitioners do all their work in state and can easily access local notaries in person. Petition drives often have their own notaries (like me! If you have petitions, call me, and I’ll bring my stamp, my mask, and my own clean pen!); circulators also take their petitions to their own friendly bankers, lawyers, or county auditors in person. The coronavirus-cautious may arrange to connect electronically with their local notaries, but they still have to place the actual documents in the notaries’ hands for physical stamping, so under SB 193 or current law, circulators might as well mask up, bring the petitions in person, then stand back from the desk while the notary applies the seal.

SB 193 probably won’t slow down South Dakota’s limited remote notarization processes, but it certainly doesn’t speed them up. Our moneyed elites get cranky about any crimpage of their commerce, so maybe Venhuizen and other lawyers who’d like a little more convenience in their high-finance operations will send a note to Senate Judiciary (which hears SB 139 on Thursday, February 11) and request a hoghouse to flip SB 193 into another step forward, to the remote notarization with electronic seals that 28 other states allow.