TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Order 16, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project for the District Courts
During its January meeting, the Committee approved proposed amendments to Order 16. The rule proposal is before the Supreme Court. A copy of the proposal is attached.
Because one of the proposed amendments to Order 16 related to notary signatures, staff send the proposal to the Secretary of State for review. Shortly before the April meeting, the Secretary of State responded with an e-mail suggesting that the proposed amendment was not in accord with the state law on notary signatures. A copy of the e-mail is attached.
The Committee briefly discussed the Secretary of State's e-mail at the April meeting. The consensus was that additional legal research needed to be conducted to determine if the Secretary of State's suggestions were valid.
The Secretary cited N.D.C.C. § 44-06-13 as requiring an "original" signature. The pertinent part of this statute provides as follows: "A notary public may not notarize a signature on a document if . . . [t]he signature on the document or the notarial certificate is not an original signature, except as otherwise provided by law." A copy of the statute is attached.
The amendment to Order 16, however, does not require a notary to notarize a non-original signature on a document. Instead, the amendment provides: "The typed attorney,
or party, notary public or other name or facsimile signature on a document filed electronically has the same effect as an original manually affixed signature." In other words, the Order allows an electronic signature to be treated as an original signature.
The Secretary agrees that N.D.C.C. § 9-16-10 "appear[s] to allow for electronic notarizations." The statute provides, in its entirety: "If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record." The amendment to Order 16 appears consistent with this statute.
The Secretary claims, however, that this statute is inoperative because "there are no procedures or mechanics for implementing this general authority contained in state law." Presumably, the Secretary believes an "electronic signature" is not an "original signature." In addition, the Secretary apparently believes that the "electronic signature of the person authorized to perform those acts" cannot be brought together in an electronic document with "all other information required to be included by other applicable law."
There is no North Dakota Supreme Court case law that defines the term "original signature." Even if we assume for the sake of argument that only something written on paper counts as an "original signature," the portion of N.D.C.C. § 44-06-13 that the Secretary relies upon includes the clause "except as otherwise provided by law" following its reference to "original" signatures. N.D.C.C. § 9-16-10 explicitly allows "electronic signature[s]" to be used in notarized documents.
The Committee may wish to discuss whether Order 16 should be further amended or otherwise modified in response to the Secretary's objections. If the Committee disagrees with the Secretary's objections, the Committee may wish to discuss the rationale for its disagreement so that staff can pass the Committee's reasoning on to the Supreme Court during the hearing on Order 16.